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Faith-Based Organisations Update Spring 2018
Faith-Based OrganisationsUpdate
Spring 2018
2 Employment Update | Autumn 2013
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Front cover image and above St Mary’s Hospital Almhouses is a Christian charity dating back to the 12th century and closely linked to Chichester Cathedral. For more information on the charity, see page 6.
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In brief
Contents
Charity Governance Code 4
St Mary’s Hospital 6
Gender segregation 7
Religious workers 9
Charity in Islam 11
ComRes 12
BWB ‘Faith at Work’ lunches 13
Data protection 14
Places of worship 16
Occupational requirements 18
Personal faith journey 20
Case and Charity Commission roundup 22
The Charity Governance Code is a useful tool to improve governance and help faith-based organisations to thrive. Leona Roche and Tesse Akpeki highlight its key principles, page 4.
St Mary’s Hospital Almshouses can trace its origins back to thetwelfth century. Key to its future survival is careful management of evolution to meet changing needs, says David Coulthard, page 6.
The Court of Appeal has concluded that segregating boys and girls can cause detriment under the Equality Act 2010. Louise Rea discusses the implications for faith schools, page 7.
Tim Barnden and Aisha Choudhry explain the different visa options for faith-based organisations wishing to employ ministers or missionaries from outside the EU, page 9.
Charity is central to Islam explains Augustus Della-Porta, exploring the links between waqf and permanent endowment, page 11.
Katie Harrison introduces the ComRes Faith Research Centre,set up to help improve the quality of knowledge about religionand belief by providing robust and impartial evidence of currentreligious identity, belief, practice and behaviour, page 12.
Lucas Atkin explains how the new General Data ProtectionRegulation could affect churches and faith-based charities, page 14.
Ownership of properties by faith communities needs to be clear so as to avoid conflict or confusion when changes occur. Holly Terry and Will Scott share tips to navigate disputes, page 16.
With the abolition of employment tribunal fees in July 2017, the number of employees challenging religion or belief as an occupational requirement is set to rise, says Lucy McLynn, page 18.
The journey towards faith can involve a literal, as well as aspiritual journey. Augustus Della-Porta shares his personal road toDamascus, page 20.
And finally, Philippa Masters rounds up the latest cases and newsfrom the Charity Commission, page 22.
Stephanie BidenPartnerT: 020 7551 [email protected]
Stephanie is joint head of BWB’s Faith-based Organisations group. The multidisciplinary group consists of 23 members from across the firm and provides practical legal advice to clients from across a range of different faiths.
Stephanie is a trustee of three Christian charities, OMF International (UK), Stewardship and Tearfund.
Faith-Based Organisations Update | Spring 2018 3
Welcome
Introduction
It’s been another exciting year at BWB. We have enjoyed working with a wide-range of faith-based organisations this year, including St Mary’s Hospital, an ancient almshouse featured in this update.
In a busy year for the team, we were delighted to continue our series of ‘faith at work’ lunches which remain hugely popular within BWB. This is a joint initiative between our Faith-Based Organisations group and our Diversity and Inclusion Forum. This year the lunches gave staff an insight into the beliefs and practice of Baha’i, Christianity and Hinduism. You can find out more about these lunches on page 13.
We are currently planning our events calendar for 2018 and would love to hear from you as to what topics or issues you would like us to cover in an upcoming seminar or masterclass. Your feedback and suggestions are greatly welcomed and valued. If you have any thoughts or ideas, please feel free to email me.
Coming up we’re excited to be supporting the Evangelical Alliance with their ‘Above and Beyond’ conference for churches and Christian charities on 20 February, where we’ll be providing seminars on dealing with the Charity Commission, data protection, safeguarding and the Equality Act.
We hope you enjoy this update.
Stephanie Joint Head of the Faith-Based Organisations team
February 2017 Stephanie Biden hosted a breakfast discussion on faith in public life with Michael Wear, one of President Obama’s ‘ambassadors to America’s believers’, in connection with the launch of Michael’s book: Reclaiming Hope: Lessons Learned in the White House About the Future of Faith in America.
May 2017 Jim Clifford and Lucy Rhodes delivered a seminar on public benefit and impact measurement for faith-based charities.
July 2017 Luke Fletcher hosted a breakfast discussion with Paul Bickley from Theos, exploring their report on Faith and Social Innovation.
Stephanie Biden hosted a breakfast event for the Evangelical Alliance’s public leadership network
October 2017 Lucy McLynn and Leona Roche spoke at the Caritas Social Action Network conference exploring some of the challenges that faith-based organisations face when seeking to raise funding, in particular those that arise from the charity’s explicitly faith-based objects.
November 2017 Stephanie Biden spoke about fundraising and complying with the new General Data Protection Regulation at Stewardship’s annual conference on fundraising for churches and Christian charities.
Faith-based events we have supported this year
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Leona Roche and Tesse Akpeki highlight its key principles
All faith-based organisations wish to succeed and see their vision fulfilled. A foundational building block for achieving this success is developing and maintaining high standards of governance. Faith-based organisations have a simple yet effective tool to help with this – the Charity Governance Code.
What is it?
The code sets out seven principles of good governance that all charities should aspire to. It explains why each principle is important – the ‘rationale’ – and gives examples of how that principle can be applied in practice.
Who developed the code?
Launched in July 2017, the code was developed by a steering group of charity umbrella bodies including the Association of Chairs, Acevo, ICSA: The Governance Institute, NCVO, the Small Charities Coalition, and the Wales Council for Voluntary Action. The code replaces and expands upon the Code of Good Governance, which was last updated in 2010.
Is it legally binding?
No, the code is not a legal or regulatory requirement. However, the Charity Commission does expect trustees to be familiar with the code and to apply it to their charity. The commission has underlined the code’s importance by withdrawing its own guidance, The Hallmarks of an Effective Charity (CC10).
How to use the code
The first and obvious step is for trustees to read the code! It is fairly short, easy to read and very user-friendly. There are two versions – one for larger organisations and one for smaller organisations.
We would encourage trustee boards to read the code together and assess their charity’s current performance against each principle and the recommended practice. The code takes an ‘apply or explain’ approach – boards should either apply the
recommended practice, or be able to explain why they have chosen not to and what they have done instead.
Trustee boards need not despair if they find that they are falling short of the code in certain areas. The code acknowledges that not all charities will be able to achieve all of the standards it sets. It is designed to be a tool for continuous improvement, setting standards that organisations can aspire to and work towards. Effective use of the code will mean that boards regularly revisit and reflect on the code’s principles and how they are lived out in their organisation.
There is an emphasis on values throughout the code and it is the role of the board to set the tone for their particular organisation, including its vision and values. This principle is in keeping with the importance that faith-based organisations place on their values and beliefs, and on ensuring these are reflected by the board and in all of the charity’s work.
It is recommended that charities publish a brief statement in their annual report explaining their use of the code.
What are the seven principles?
The principles, and some of the key recommended practices, are:
1. Organisational purposeThe board must be clear about the organisation’s aims and ensure these are being delivered effectively and sustainably. The board’s focus should be on strategy, performance and assurance.
2. Leadership It is essential that charities are led by an effective board that can provide strategic leadership in line with the organisation’s aims and values. It is very much in keeping with the code’s emphasis on values that faith-based organisations require trustees to affirm an express declaration of faith or at least to confirm that they respect the organisation’s values.
3. IntegrityThe board should act with integrity, adopting values and creating a culture that helps achieve the
Leona RocheSenior associateT: 020 7551 [email protected]
Leona is a senior associate in the Charity and Social Enterprise department and is also joint head of BWB’s Faith-Based Organisations group. She regularly advises faith-based charities on governance issues, including trustee duties and decision-making. Leona is currently enjoying being a trustee of the Daughters of Charity of St Vincent de Paul Services, a Catholic charity.
Tesse AkpekiConsultantT: 020 7551 [email protected]
Tesse is a consultant, trainer and Centre for Effective Dispute Resolution-accredited mediator. She was formerly head of governance and trustee services at the National Council for Voluntary Organisations and has worked extensively with third sector organisations nationally and internationally.
Governing for success
The Charity Governance Code is a useful tool for achieving excellent governance, and for helping faith-based organisations to thrive.
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Faith-Based Organisations Update | Spring 2018 5
organisation’s charitable purposes. Again, values are emphasised, and aligned with integrity and managing conflicts of interest.
4. Decision-making, risk and controlTrustees should ensure they are macro-governing and not micro-managing. This can be difficult in practice when trustees are also involved in a volunteer role. Trustees of faith-based organisations are usually active members of their faith community and often engaged in wider voluntary work in their charity. They need to be careful to distinguish between their roles as trustees and volunteers.
The code specifically recommends that boards should regularly review the matters that are reserved to the board and those that can be delegated.
5. Board effectivenessThe code stresses the need for the board to work together as an effective team, and to have the right mix of skills, experience and knowledge. A rigorous approach to trustee recruitment and development is key to this.
This is particularly important for faith-based organisations, many of which do not look beyond their existing personal networks when looking for new trustees. Being overly cautious to preserve the charity’s distinctive faith ethos can make it difficult to find people with the optimal range of experience.
The code is clear that trustees should be appointed for an agreed length of time and not serve for terms of longer than nine years, unless exceptional circumstances apply. It is not uncommon for faith-based organisations to have trustees who have served for much longer than this; Boards should consider whether this is really appropriate, and if so they should explain the reasons in the trustees’ annual report.
6. DiversityThe code recognises that diversity will enhance an organisation’s good governance and lead to better board decisions. Diversity includes different backgrounds, life experiences and outlooks, as well as
the protected characteristics in the Equality Act 2010. Again, this can be a challenge when faith-based organisations recruit new trustees informally from within their own faith community. While a shared faith may be at the core of the charity’s work, boards should consider how their charity could benefit if the board had greater diversity in other ways.
7. Openness and accountabilityThe code upholds the importance of transparency and accountability. Making accountability real, celebrating success and demonstrating willingness to learn from mistakes builds trust and confidence. Member engagement is encouraged as the charity looks for values and takes into account members’ views on key issues.
Being a good trustee means being committed to good governance and contributing to the charity’s continued improvement and success – the code offers all trustees a tool to do this.
Find out moreThe Charity Governance Code is at https://www.charitygovernancecode.org/en where there is detailed information on all the code’s principles, and how to put them into practice.
‘There is an emphasis on values throughout the code and it is the role of the board to set the tone for their particular organisation, including its vision and values.’
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David Coulthard introduces the charity and forthcoming changes
St Mary’s Hospital Almshouses in Chichester can trace its origins back to the 12th century: a remarkable story of survival for a charity that stands on the verge of another moment of change in its long history.
The original hospital served the needs of travellers, the destitute and the sick – ‘hospital’ then implying hospitality and shelter. It moved to its current site in 1253. The timber-framed building originally had a large hall used as the infirmary and a chapel at the east end. After Elizabeth I’s Poor Laws in 1601, the hospital began to take on its current form, ceasing to be a night shelter and housing residents who were allowed to remain until the end of their lives.
Today services continue to take place almost daily in the medieval chapel, but the hall has been reduced and sensitively converted into almshouse apartments on either side. With the addition of new cottages and flats the charity now has capacity for up to 36 residents. Admission is governed by the trustees and reserved for older people from the local area who are in financial need and sympathetic to the Christian ethos on which the charity’s activities are based. Residents are supported by a dedicated staff team of wardens, a maintenance team and the Custos – a clergyman who leads services and provides spiritual support.
The hospital is supported by gifts and endowments collected over the centuries – invested in a mixture of equities and property – which give it a sustainable future. However, it is not immune to the pressures that affect the social care sector and those working with older people in the twenty-first century. Residents who are in declining health can struggle to access the care they need from the state, and their understandable desire to remain in their own homes for as long as possible can conflict with the objective of ‘independent living’, placing staff and trustees in a difficult position. In common with other almshouses, the trustees must keep reviewing what level of care it is appropriate or possible for the charity to provide.
They also need to keep the balance between functioning as an almshouse and the other, broader, element of the charity’s objects – the ‘relief of need’. St Mary’s Hospital has worked closely with a local homelessness charity, Stonepillow, over a number of years, and may consider other partnership opportunities in future.
Such issues will be discussed by an improved trustee body. Since 1898 the Trustees of St Mary’s Hospital have been the Dean and Chapter of Chichester Cathedral; this long operational partnership has allowed the hospital to access specialist skills more cheaply through cathedral staff. Now the Cathedral Chapter has identified an opportunity to enhance the governance of St Mary’s Almshouses, and to remove potential conflicts of interest, by separating the governing bodies.
BWB has advised St Mary’s Hospital and the cathedral on revising its governing documents, and on how to ensure that the distinctive Christian ethos of the charity – and its link with Chichester Cathedral – is preserved for generations to come. Members of the Cathedral Chapter will continue to serve St Mary’s Hospital alongside a new group of independent trustees who will bring new skills to help this historic charity address future challenges.
BWB acted for the National Association of Almshouses as a third party intervener in the leading case of Watts v Stewart & Others ([2016] EWCA Civ 1247), in which the Court of Appeal confirmed that almshouse residents occupy as licensees and not as tenants with security of tenure.
David Coulthard, Communar and Executive Director of Chichester Cathedral.
The Communar is the senior lay administrator on the Cathedral staff and is responsible to the Cathedral Chapter for financial planning; personnel matters including acting as line manager for all the lay staff; managing the property portfolio and maintenance of the Cathedral Close; coordinating the restoration of the Cathedral building and the general administration of Cathedral business.
Client focus: St Mary’s Hospital
St Mary’s Hospital Almshouses can trace its origins back to the 12th century. Key to its survival is careful management of its evolution in the 21st century.
Client focus
“It is not immune to the pressures that affect the social care sector and those working with older people in the 21st century… In common with other almshouses, the trustees must keep considering the question of what level of care it is appropriate or possible for the charity to provide”
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Features
Louise Rea Senior associateT: 020 7551 [email protected]
Louise is an employmentlaw specialist. She isan experienced Tribunaladvocate and hassuccessfully representedboth claimants andrespondents. Louise alsohas significant experienceas a legal trainer.
Gender segregation
In a decision that has implications for faith schools, the Court of Appeal has concluded that segregating boys and girls can cause detriment under the Equality Act 2010.
Louise Rea discusses the court’s conclusions, and their ramifications.
Al-Hijrah School in Birmingham is a voluntary-aided Islamic faith school in Birmingham, which operated a gender-segregation policy for religious reasons. Boys and girls aged nine and above were separated during lessons, breaks, after-school clubs and outings. Ofsted concluded during an inspection that this policy of complete segregation left the pupils ‘unprepared for life in modern Britain’. However, the High Court quashed the Ofsted report on the grounds that there was no evidence that the standard of education received by boys at the school was any different from that received by girls, and the parents who chose to send their children there generally supported the policy.
In October 2017, the Court of Appeal unanimously overruled the High Court’s decision, accepting that complete segregation could cause detriment and less favourable treatment for both boys and girls because they were denied opportunities for socialising with, interacting with and learning from the opposite sex.
The Court of Appeal concluded that the High Court judge had been wrong to say that each sex had to be viewed as a group when deciding whether there had
been less favourable treatment, as the starting point under the Equality Act 2010 is to consider direct discrimination by reference to a ‘person’. An individual female pupil at the school could not socialise and intermix with a male pupil because of, and only because of, her gender, and an individual male pupil could likewise not socialise and intermix with a female pupil. Each individual in this scenario was, therefore, treated less favourably because of their gender. The fact that both genders suffered this detriment did not prevent the Court of Appeal from finding that there had been less favourable treatment, as separate but equal treatment can be discriminatory. An application to appeal the ruling was rejected in November 2017.
The decision has implications for the 20 or so mixed-sex faith schools in England believed to be enforcing similar gender-segregation rules, roughly half of which are Islamic schools. These schools will need to revise their policies to avoid facing similar proceedings. However, the Court of Appeal noted that, as segregation had been approved in the past, the schools involved should be given sufficient time to adjust.
In the wake of this judgment, heads across the country pressed the government to clarify what action they needed to take. The DfE has apparently informed a
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Jewish Orthodox school that segregates boys and girls that the school can split into two single-sex schools within the multi-academy trust. This would mean they will be covered by the exemption in the Equality Act 2010 that permits single-sex schools to select pupils for admission on the basis of their gender.
However, this exemption only applies to admissions and does not permit discrimination in any other aspect of school life. Trustees of multi-academy trusts should be particularly cautious as they are responsible for ensuring that all of their schools comply with the Equality Act 2010. Splitting a mixed-gender school into two single-sex schools will not in and of itself address all potential issues. A spokesperson for Ofsted said that ‘good single-sex schools run extracurricular programmes and put specific arrangements in place to maintain healthy integration’. If a single-sex school does not allow any form of interaction between girls and boys, whether or not this is because of a religious belief, this is likely to be flagged as a concern by Ofsted.
Although this case is only directly relevant to a handful of schools, it has significance on a much larger scale. The Court of Appeal’s judgment has intensified what was already a fierce debate regarding what an education that prepares young people for life in modern Britain actually looks like. As a nation, we are divided about the role that religious belief should play in education: from those who believe it should be banned completely to those who see it as paramount, with many shades in between. A small number of commentators from both ends of the spectrum fail to recognise the diversity of faith schools. Striking a balance between religious freedom and other competing protected characteristics remains fraught with difficulty.
Humanists UK’s education campaigns manager, Jay Harman, has called on the DfE to be ‘very careful’ about allowing gender-segregated schools to convert to separate single-sex schools ‘without assessment of what the pupils in those schools will be taught’, and the extent to which this could reinforce gender stereotypes. The DfE has emphasised that all schools are held to account by Ofsted to ensure they are delivering a broad and balanced curriculum.
It is important to note that Ofsted did not have a specific concern about the range of subjects offered to girls in comparison to boys at Al-Hijirah. However, it was concerned that at least some of the girls who were interviewed had received the message that they were inferior to boys. This may help to explain the apparent anomaly that gender segregation in a mixed-sex school is now unlawful, while single-sex education remains lawful.
Find out moreThe Ofsted inspection reports for Al-Hijirah are available at https://reports.ofsted.gov.uk/inspection-reports/find-inspection-report/provider/ELS/133306
You can read more about the progress of the case at www.theguardian.com/education/2017/oct/13/islamic-school-gender-segregation-unlawful-court-of-appeal
“The fact that both genders suffered this detriment did not prevent the Court of Appeal from finding that there had been less favourable treatment, as separate but equal treatment can be discriminatory”
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Tim BarndenPartnerT: 020 7551 [email protected]
Tim is a partner and Head of the Immigration department advising clients across the full range of personal, business immigration, and human rights and refugee-based claims. More than 17 years’ qualified, he started his practice in the legal aid sector, moving on to work for 10 years within a highly-regarded niche immigration firm before joining BWB.
Aisha ChoudhrySolicitorT: 020 7551 [email protected]
Aisha is a solicitor in the Immigration department and specialises in personal and business immigration. She has extensive knowledge of sponsor-related matters under Tier 2 and 5 of the Points Based System.
Religious workers – updateThere are several visa routes open to those wishing to come to the UK to carry out religious work, but care must be taken to avoid falling foul of the strict requirements of the Immigration Rules.
Tim Barnden and Aisha Choudhry explain the complexities for faith-based organisations wishing to employ ministers or missionaries from outside the EU
The Tier 2 (Minister of Religion) visaThis category is open to those coming to the UK to take up employment within their faith community in the UK. Migrants must demonstrate that they will be undertaking preaching and pastoral work as ministers, missionaries or members of religious orders.
Applicants
Applicants under this category must have:
n a job offer from a UK organisation;
n proof of their knowledge of the English language;
n personal savings to demonstrate that they can support themselves without recourse to public funds; and
n a Certificate of Sponsorship (CoS) from the prospective employer.
Employers
To recruit under this category, employers must:
n be registered with the UK Visas and Immigration (UKVI) department as a sponsor and hold a valid licence;
n advertise the role (unless the role is supernumerary or mainly within a religious order) before offering it to an overseas worker;
n be satisfied that the worker is qualified to fill the role before issuing a CoS.
Ministers
There is no definition of a ‘Minister of Religion’ in the Immigration Rules, but the work to be carried out must include activities such as leading sermons, preaching, conducting worship services and leading marriages and funerals. It must be pastoral in nature and can involve providing counselling and welfare
support to members of the congregation and recruiting and training local volunteers. UKVI guidance allows applicants to carry out some non-pastoral duties as part of their role, such as administrative or clerical work.
Missionaries
Missionaries applying under this route have more flexibility, as they are permitted to translate religious texts, coordinate the work of other missionaries or fill a senior post within the organisation. Missionaries are permitted to undertake senior roles – such as being in charge of accounts, finance, personnel management or IT – but are not permitted to teach in a faith-run school or carry out general administrative or clerical work.
There are advantages to this route as sponsors are not obliged to pay a minister of religion any particular amount (unlike some other work categories), provided the conditions are at least equal to those of a settled worker in the same role and comply with National Minimum Wage regulations.
Recent issues
Work is not ‘pastoral’ Recently the UKVI has begun to refuse applications where they feel that the applicant is carrying out work that is not mainly ‘pastoral in nature’. They determine this by scrutinising the job title and description in the CoS. Applications have been refused where an applicant’s role involves any administrative, cooking or cleaning-related activities.
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UKVI guidance states that UKVI caseworkers must not penalise applicants if their role does not fall within ‘traditional’ pastoral work and ‘must not make assumptions about a sponsored migrant under this category based on a job title’, but we are finding that refusals on this basis are happening frequently in practice.
The refusal of an application can affect a person’s right to remain in the UK on a long-term basis, as well as restricting access to services such as housing, driving and bank accounts. Crucially, for some individuals, a refusal and subsequent actions could impact their immigration history and any future Indefinite Leave to Remain application as applicants must demonstrate that they have held ‘continuous lawful leave’ in the UK.
Compliance Tier 2 and 5 sponsors may be subject to audits by the UKVI (including unannounced audits) at any stage. Personnel files are checked and sponsors can be scrutinised to check that they are complying with their duties and are not employing migrants to carry out solely administrative work. Their sponsor licence can be revoked or downgraded if they are found to be non-compliant.
Individuals whose visas are sponsored can also be interviewed extensively by the UKVI to determine if they qualify for their visa.
Resident Labour Market TestThe Immigration Rules require sponsors to advertise for certain roles for at least 28 days in at least two different media. There is little flexibility in the rules for ministers of religion: the rules don’t take into account that recruitment practices may be different for religious organisations, with some overseas ministers ‘voted’ into roles or ‘sponsored’ by overseas supporters to undertake specific roles.
Other sponsor-based categories
If an application is not possible under the Minister of Religion category, you may want to consider sponsorship under another immigration category:
Tier 2 Intra Company Transferee (Long Term) visa This visa is for overseas employees who have been offered a role in a UK branch of the same organisation. The employee would be transferred to the UK branch for more than 12 months into a role that cannot be filled by someone in the UK. The employee must usually be paid at least £41,500 per annum (this may be higher depending on the role). This category is not specific to religious workers and can be used for any field of work.
Tier 2 General visa This visa can also be used for any field of work. The role must be a ‘genuine vacancy’, usually must be advertised, must be a ‘skilled’ job and the employer must pay the migrant a minimum salary of at least £30,000. Like the above category, this category is not specific to religious workers and can be used for any field of work.
Tier 5 (Temporary Worker – Religious Worker) visaThis is for those who want to do religious work in the UK on a temporary basis, for up to 24 months. This may include preaching, pastoral and non-pastoral work and members of a religious order such as an order of monks or nuns, or a similar religious community involving a permanent commitment.
Tier 5 (Temporary Worker – Charity Worker) visaApplicants in this category are permitted to undertake unpaid voluntary work for a charity in the UK, including a faith-based charity. Applicants can stay for up to 12 months and cannot receive any payment for work or take on a permanent job role, but are permitted to receive ‘reasonable expenses’.
The rules for religious workers can be complex and it is important to seek advice early in the process.
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Augustus Della-PortaSenior associateT: 020 7551 [email protected]
Augustus advises charity and social enterprise clients on commercial, contractual, governance and charity law matters. He works with a broad range of not-for-profit clients, including Muslim and other faith-based organisations and organisations working in the Arab region.
Charity in Islam – the future of waqfCharity is central to Islam, as we’ve outlined in previous updates, with three main forms of giving being core to the faith.
Here Augustus Della-Porta explains the concept of waqf and its origins
In addition to zakat (religious dues) and sadaqah (voluntary charitable giving) the third type of charity in Islam is waqf, an endowment of property or investment for a charitable purpose, whereby the assets are retained with the profits applied for the charitable purposes.
The concept of waqf goes back to the time of the Prophet Mohammed. One hadith reports the Prophet as saying ‘When a man dies, all his acts come to an end, but three; recurring charity (sadaqah jariyah) or knowledge (by which people benefit), or a pious offspring who prays for him’. Establishing a waqf enables an ordinary voluntary act of charity (sadaqah) to be repeated in perpetuity, so that a single act of giving becomes sadaqah jariyah (recurring charity).
An early example of waqf is found in another hadith where the Prophet Mohammed was asked by Omar ibn Khuttab how he could give away an orchard he owned. The Prophet responded telling him to make the land inalienable and give away the benefit (i.e. the fruit) to the poor and needy.
Waqf has played a very important socio-economic role in Islamic history, providing not only the traditional places of worship, but also education, health services, welfare, roads and bridges. It has also been used for more unusual purposes, such as assisting pilgrims to go on Hajj, helping people to marry and looking after animals.
Waqf reached its zenith in the 17th and 18th centuries, when it was estimated that in some Muslim-majority countries up to a third of cultivable land was held as waqf. Since then much of what was waqf property has been centralised by the state, and much waqf property has become stagnant over time.
Some scholars have claimed that waqf influenced the development of the common law trust and was brought across to the English legal system by knights returning from the Crusades. One claims that the
1264 Statutes of Merton College Oxford have so many elements of waqf instruments that they would be accepted as a waqf deed if written in Arabic.
The traditional concept of waqf in Sharia law is similar to permanent endowment under English law. The founder dedicates his assets as set out in a waqf deed, which includes the purpose of the waqf and how profits are to be distributed. A charity must maintain property given to it under a permanent endowment; while the income can be spent, the capital cannot. This has the advantage of protecting the endowment, but is an inflexible way of holding funds.
However, recent rulings mean that waqf – particularly as a cash waqf – can be seen as a new philanthropic model of sustainable social enterprise. In legal terms, it can be treated as expendable endowment rather than permanent endowment: subject to any conditions attached to the endowment, the trustees will have a legal power to convert all or part of the capital into an income fund, which can be spent.
A recent example is the waqf charity set up by Islamic Relief, which allows donors to invest in Sharia-compliant ‘waqf shares’, where donations are invested in property and the profits used to fund projects such as hospitals, schools and sustainable livelihood projects.
Charities wanting to set up such a waqf fund should ensure that the waqf deed is drafted carefully so that it is Sharia-compliant and the funds donated to it can be treated as expendable rather than permanent endowment.
Find out moreAugustus’s article on the three main forms of giving in the Islamic faith appeared in our Spring 2017 update: https://www.bwbllp.com/knowledge/2017/01/30/faith-based-update-spring/
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Katie HarrisonDirector, Faith Research CentreT: 020 7871 [email protected]
Katie supports public, private, academic, media and non-profit clients in gathering data and insights which help to understand the connections between beliefs and behaviours. She has a long track record of leading communications and external relations in international development and local government, and of working on faith-specific projects, and is also an Honorary Fellow of the Cadbury Centre at the University of Birmingham.
ComRes: leading the way in faith researchThe ComRes Faith Research Centre is the first commercial centre of expertise in this country set up to help improve the quality of knowledge about religion and belief by providing robust and impartial evidence of current religious identity, belief, practice and behaviour.
Features
Katie Harrison, Director of the Faith Research Centre, introduces its work
Religion and belief play a hugely important part in many people’s lives, all around the world. Decisions about money, time, family, voting, healthcare, relationships, work and many other important parts of daily life are profoundly affected by deeply held beliefs, often consciously driven by religious affiliation.
But, much of the time, you wouldn’t know. Not in Britain, at least.
Travel to the Middle East or Africa – as I did frequently when I worked for Tearfund – and the links between beliefs and behaviours are explicit. They are not always positive, and often result in trauma and conflict, but they are visible and named. People know what they are dealing with.
That knowledge is hugely helpful for voluntary organisations seeking to inspire change. If religious belief is the driver for an action, then listening to the faith tradition can help to understand its effects on opportunities for women, or implications for peacebuilding, for example.
But in Britain, we don’t always name in the public sphere the beliefs that drive our behaviours, even though around half of us identify with a religious tradition. Alternatively, we make sweeping statements out of ignorance. We hear people say on national TV, or at the bus stop, things like ‘Well, Catholics always do this’ or ‘Muslims would never do that’.
ComRes set up its Faith Research Centre because we have a long track record of serving clients which are interested in exploring the views of faith communities, or in gathering insights from the general public about religion and belief. Organisations we’ve worked for include the Church of England, the Office of the Chief Rabbi, Christian Aid, the Bible Society and the BBC.
In the past few months we’ve delivered focus groups to explore perceptions of sacred texts, surveyed the public about family time and use of phones at mealtimes, gathered evidence of food poverty to
support a charity’s public policy development, heard from teenagers about their perceptions of Jesus and of churchgoing, mapped the demography of Britain’s practising Christians to inform churches’ planning for mission, explored attitudes to generosity at Christmas compared with other seasons, and tested belief propositions relating to prayer and life after death.
In our experience, faith-based charities have an excellent understanding of who their audiences are, but it can be difficult to find ways to reach them, or test messages before disseminating them widely.
Fundraising
Knowing where to find the people who are likely to want to support your cause, and understanding what motivates them to give, is half the battle. Good audience insight can help you to identify your target audience and to test your messages, brand recognition and fundraising products with the people you want to reach. Putting in the work ahead of time gives you confidence that your appeals for funds will be successful.
Communications
Much of our survey work is used by charities’ media relations and corporate communications teams to help raise public awareness. Our work for the Office of the Chief Rabbi helped gain extensive publicity for the Shabbat UK festival, and our evidence of public attitudes to tax avoidance resulted in comprehensive news coverage for Christian Aid.
Advocacy and campaigning
We are often asked to gather evidence of need from communities around the UK, to assist faith-based campaigning organisations to make their case with decision-makers. And we run the largest suite of
“Knowing where to find the people who are likely to want to support your cause, and understanding what motivates them to give, is half the battle”
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legislative panels in the country, regularly measuring the views of hundreds of MPs, peers, members of devolved legislatures and councillors, helping many faith-based charities to assess strategic objectives and brand awareness, as well as testing their campaign messages before running an advocacy campaign.
Strategic planning
Understanding your context is crucial to the strategic development of your organisation. Our research services offer insight and analysis of demographic segments, and of opportunities for outreach, service development and effective delivery.
Find out moreFor more information contact [email protected] or go to www.comresglobal.com/faith
We are delighted that BWB has been nominated for a Belief at Work Award from ComRes recognising our commitment to creating a workplace where belief is acknowledged and understood as a significant aspect of our staff and clients’ lives. The nomination recognises BWB’s popular faith-related diversity initiatives, including our ‘faith at work’ lunches. At these events BWB staff and clients provide personal insights into their faith, its key teachings, festivals and practices; and the difference it makes in their life.
This year, we had a fascinating introduction to the Baha’i faith from Natalie Knight-Wickens and Patrick O’Mara, from one of our Baha’i clients, the National Spiritual Assembly of the Bahá’ís of the United Kingdom, accompanied by some delicious Persian desserts. We benefited from Holly Terry’s theology degree and love of church history, exploring different Christian traditions and denominations, with Michael Roche sharing some practical insights from his work for Alpha for Catholics.
Viral Kataria and Roshni Pisavadia were joined by Priyesh Patel from BAPS Swaminarayan Sanstha, one of our Hindu charity clients, to present an introduction to Hinduism. While enjoying a delicious vegetarian spread from Shayona restaurant, colleagues learnt about the key beliefs and practices of the Hindu faith, including Hinduism’s history, and its gods and deities. Priyesh gave a fascinating insight into temples and worship, and their role in the local community. They explained the background and celebrations behind the key Hindu festivals including Diwali, Holi and Navaratri.
Belief at Work
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Lucas Atkin outlines the new provisions under GDPR
The General Data Protection Regulation (GDPR) comes into effect on 25 May 2018. Despite being EU law, it automatically applies to UK organisations and, for the time being at least, will not be affected by Brexit. Many charities are grappling with the implications of GDPR for their fundraising, as well as how they handle information about their service users.
Churches, mosques, temples and other faith communities will also all be affected by GDPR. Information you receive in the course of your everyday ministry and interactions is likely to trigger obligations under the GDPR – a church or community membership directory or a prayer list could be affected.
GDPR can seem like a bureaucratic nightmare distracting you from your organisation’s mission. But data protection matters because it is primarily not about information, but about people. The misuse of personal data can have a serious impact, so it is vital to respect people’s privacy and ensure their personal data is kept safe and used appropriately. The principles underpinning the law are based on accountability, openness and protecting one another, which should be welcomed by faith communities.
If you are already complying with current data protection law, you should not need to make significant organisational changes to comply with GDPR. However, responding to the publicity around GDPR (and perhaps scared by the prospect of significantly increased fines for non-compliance) some organisations are identifying gaps in their compliance with the Data Protection Act 1998 and other legislation. They will face more challenges in getting ready for GDPR on time.
Accountability and transparency
One of GDPR’s key principles is accountability. You must show that you understand the risks involved in looking after people’s personal information. It is not enough just to protect people’s information – you need the policies and records to demonstrate how you do this. At the most basic level, you need to be able to
show that you have considered what kind of personal information you collect and hold, why you do so, the risks associated with doing so and how you plan to look after it. You will need to create policies and procedures appropriate to your size and operations.
GDPR also requires you to be upfront and clear with your community and supporters about why you need their personal information, what you plan to do with it and that you understand, and can comply with, their rights.
Collecting personal information
GDPR mandates that you must give people detailed information before you obtain their personal information, and you must communicate it in a clear and easy-to-follow way. Privacy notices need to be more detailed and accessible than before, and should be updated or created as appropriate.
In line with technological development, there will be more types of information that qualify as personal data, including location identifiers and computer IP addresses.
Consent
There are a number of legal justifications for processing people’s personal data and it is not always necessary to get their consent if you can show that you have a legitimate interest in processing personal data.
However, consent is one of the common legal bases for processing personal data. If you are relying on consent as the basis to collect, store, use or share personal data, or to communicate and interact with your supporters or faith community, the rules about what constitutes valid consent are becoming tougher. To have valid consent, people need to understand exactly how and why you use their personal data, the legal basis on which you do so, how you will look after the data, and their related rights. Consent must be unambiguous and will require an affirmative action by the person giving it.
There are two problematic issues for organisations that rely on consent for their use of personal
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GDPR and faith-based organisationsWith GDPR coming into effect this year, faith-based organisations need to be up to speed on its requirements, and any changes in data processing policies and practices that may be required.
Lucas AtkinSolicitorT: 020 7551 [email protected]
Lucas joined BWB in 2017. He is an information lawyer specialising in data protection and advising on all aspects of data protection law at national, EU and global levels. He assists clients from a wide range of sectors, including charity, media, retail, insurance and sport.
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information. First, consent – for any use of personal information – can be withdrawn by individuals at any time (and you must inform them of their right to do so). Second, if consents you have collected before GDPR do not satisfy the tougher requirements they must be updated – this may not be easy – or they can no longer be relied on. This can be particularly challenging for organisations with databases where it is not clear what consent people gave to be included. For example, where a church or other place of worship has historically collected information about its members in an informal way, or where a mission partner may has added their friends’ and other supporters’ details onto a central database to receive prayer updates without formal agreement from the recipients.
Sensitive personal data
There are categories of personal information that the EU considers require a higher level of protection. Historically, this was information that could expose individuals to a risk of persecution. These categories include information that many faith-based organisations will hold, including individuals’ religious or philosophical beliefs and health information.
Generally, you will need explicit consent from the individual concerned to hold and process sensitive personal data about them. However, this data can also be processed in the course of legitimate activities, with appropriate safeguards, by a not-for-profit body with a religious aim, on condition that the use relates solely to the members or former members of the organisation, or to people who have regular contact with it in connection with its purposes. The personal information must not be disclosed outside the body without the individual’s consent.
Children
Children under 13 get special protection from GDPR. If you collect or use children’s information, you must give them privacy notification in a way that they can access and understand, and you may need consent from a parent or guardian.
Enhanced rights for individuals
GDPR gives individuals more rights, which in turn places more obligations on you. Rights under current law continue but some are enhanced, such as the right to access personal information you store, and some are added, such as the right to have personal information erased from your records. Most are only available in certain circumstances.
Data security
As under current law, you are required to safeguard personal information you hold with measures that are appropriate to its context and nature. Broadly, there are two types of measures you must use:
n Organisational – for example, staff/volunteer training, internal policies and procedures and means of showing that these are both understood and complied with.
n Technical – for example, closed IT networks and software that means that information cannot be used to identify individuals if it falls into the wrong hands.
There are two key alterations that may affect your organisation:
n you may be under increased scrutiny to demonstrate that the measures you use are appropriate, understood and working; and
n you are obliged to tell the ICO about any data security breach within 72 hours of becoming aware of it, and may also have to notify affected individuals.
Find out moreCivil Society has published a free guide for charities on the implications of GDPR. Fundraising and Data Protection: A survival guide for the uninitiated is available from http://2040training.co.uk/wp-content/uploads/2017/03/Fundraising-DP-guide.pdf
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Holly TerrySolicitorT: 020 7551 [email protected]
Holly is a solicitor in the Charity & Social Enterprise team where she advises charities, not-for-profit organisations and businesses with a social purpose on a range of legal and commercial matters. She has a particular interest in advising faith-based charities and other mission-led organisations. Holly is a trustee of BeMORE and Together for the Common Good.
Will ScottSenior associateT: 020 7551 [email protected]
Will advises a wide range of charities of all sizes including a number of household names, unions and educational establishments. He also advises private individuals on all aspects of property-related disputes, but with a particular specialism in landlord and tenant work.
Tricky issues with places of worshipThe ownership of properties by faith communities needs to be clear so as to avoid conflict or confusion when changes occur.
Holly Terry and Will Scott explain the issues that arise, and how to avoid problems
The bricks and mortar of places of worship that house the lives of religious communities become the homes for large, extended families. At times, we see these becoming a source of difficulty or conflict arousing fierce passion and deep hurt. Many of these disputes could be avoided by a clear understanding of the legal ownership of community property.
Property trustees
Religious communities that are unincorporated (without their own separate legal personality or limited liability, usually established by a trust deed) rely on individual trustees to hold community properties in their own names. These individual trustees are registered as owners of the community’s place of worship, or other properties, (including staff housing) with HM Land Registry.
If registration has been undertaken correctly then the Land Registry will have noted that the individuals hold the property on trust for a religious community (and, if the community is a registered charity, will include a restriction on the sale of the property in line with the Charities Act 2011). However, there are still administrative requirements triggered by events in the life of the community. Communities should ensure that any individual who acts as a property trustee is aware of these requirements and can act appropriately when changes occur.
Role of property trustee
The role of a property trustee usually requires fairly little of an individual. It will involve the individual being registered as an owner of a property. They must act in accordance with their religious community’s trust deed or constitution in their handling of that property.
In communities where individuals may have been very heavily involved in raising money to acquire a building (whether through their own donations or other fundraising efforts) and feel a strong sense of personal
connection to such buildings, it is important to be clear about the nature of such a trustee’s ‘ownership’ of a property. This is not ownership in any sense that we would normally recognise – it is ownership for the benefit of others.
Death of a trustee
If a property trustee dies, they should be removed from the Land Registry’s documentation (property title), as in certain circumstances the property could form part of a dead trustee’s personal estate despite their ownership of the property being on trust for others.
Trustee moves away or leaves the community
If a property trustee moves away from the religious community, for whatever reason, then they should be removed as a registered owner of the community’s property. This may also require the trustee to follow any procedure specified in the community’s trust deed or constitution (which could be as simple as sending a letter to the other property trustees). Without removing them from the register they will remain as a property trustee even though they have resigned as a charity trustee.
A dispute arises between community members
If a dispute arises within a religious community concerning one of its properties, this obviously presents an issue to be resolved but should not, if properties have been properly registered, be a cause for undue panic.
Unless expressly restricted in the trust deed property
“The analogy of a religious community with a family is pertinent as most religious traditions recognise that their shared life creates an important bond. Honouring this bond should ideally be a consideration for any religious community that finds itself in dispute over the way that its assets are owned or used”
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trustees do have the power to sell, let, or mortgage properties that they hold on trust. However, if the property has been correctly registered with the relevant restrictions (identifying that it is held on trust and subject to the restrictions of the Charities Act 2011), then the Land Registry would not register any transfer or charge on the property title unless the trustees have complied with the relevant statutory requirements.
If a situation involving a property trustee becomes completely intractable then communities should look to the trust deed or constitution that governs the ownership and use of the property – this may include a mechanism for removing trustees. If such a process is followed, it is important to remember to inform the Land Registry and amend the property title.
Practical ways to deal with issues
Talk The analogy of a religious community with a family is pertinent as most religious traditions recognise that their shared life creates an important bond. Honouring this bond, and the beliefs underpinning it, should ideally be a consideration for any religious community that finds itself in dispute over the way that its assets are owned or used.
A structured discussion of conflicts, perhaps facilitated by a trained mediator, should be an early consideration for communities in conflict.
Seek appropriate guidance A religious community may also find it helpful to appeal to a senior figure or spiritual leader for guidance. Leaders can offer objective insight and will hopefully garner respect from all sides.
Look to your trust deed If the deed does not contain clear rules for dealing with disputes among trustees about how to deal with the community’s property, consider revising the deed to include this. Likewise your deed should include the power to review property trustees’ authority and powers so that the way that trustees run and manage community property can develop over time and respond to the life of your community.
Amend your property title When circumstances change, keep the title to any community-held property up to date.
Consider incorporation The roles of the trustees of charitable companies limited by guarantee and charitable incorporated organisations are clearly defined and lead to less confusion. These structures also prevent individuals acting as trustees being held personally liable for all the organisation’s debts. Companies and CIOs can also hold property in their own right, rather than having to do so through trustees.
If your community holds property but is not yet incorporated, it is a step well worth considering to provide future stability and clarity.
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Occupational requirements The issue of religion or belief as an occupational requirement when recruiting staff has not been the subject of litigation in recent years. But with the abolition of employment tribunal fees in July 2017, this is set to rise.
Lucy McLynn explains why it is time to revisit this topic, and the cardinal rules to apply
Readers will undoubtedly be aware of the provision in Schedule 9 of the Equality Act 2010 which permits organisations with an ethos based on religion or belief to require an employee to be of a particular religion or belief if: ‘having regard to that ethos and to the nature
or context of the work…it is an occupational requirement [and] the application of the requirement is a proportionate means of achieving a legitimate aim’.
In the years after the introduction of the (predecessor) legislation there were a couple of significant cases in which occupational requirements (ORs) were not upheld as being lawful.
In Sheridan v Prospects for People with Learning Disabilities (2901366/06), the employer was a charity motivated by the Christian faith providing housing and day care provision for persons with learning disabilities. The employer’s recruitment policy was not to appoint or promote anyone who was not a practising Christian (other than to posts of cook, gardener, cleaner and maintenance assistant). The claimant refused to follow the policy and in turn resigned. The Employment Tribunal held that the policy did not amount to an OR. The employer had failed to evaluate each job specification and instead implemented a blanket policy. The tribunal held that requiring all employees to be practising Christians was not a proportionate means of achieving a legitimate aim.
Similarly, in Glasgow City Council v McNab (UKEATS/0037/06), an atheist teacher was refused an interview for the post of Acting Principal Teacher of Pastoral Care in a Catholic school on the assumption that the Roman Catholic Church would not approve the appointment. The position was not on the list of posts that had previously been agreed between the council and the church that would require that specific approval be sought from the church and/or for the teacher to be Roman Catholic. As the position was not on the list, there should not have been an
assumption that the church would not approve the appointment. Further, the Principal Teacher of Pastoral Care position was a guidance teaching position not limited to religious guidance, but involved elements of curricular, personal and vocational support. The Employment Tribunal held that an OR did not apply. This was upheld by the Employment Appeal Tribunal (which also held that an educational authority does not, in any event, have a religious ethos and so cannot take advantage of this exemption).
Then, in 2009, there was the case of Muhammed v The Leprosy Mission International (2303459/09). Here, a blanket policy by the employer of only recruiting Christian staff in its UK head office was found to be a legitimate OR, given the context of this being an organisation in which, although the charity’s work was not evangelistic in nature, prayer played a central role, and was a daily part of the work of every employee. This was an encouraging outcome for faith-based organisations, indicating that ORs would be upheld in appropriate cases, even if applied widely.
Since this time there has not, to our knowledge, been any further tribunal case challenging the legitimacy of an OR. This may well initially have been indicative of prospective claimants having been put off by the Leprosy Mission judgment (the case was very well known at the time). But such deterrent effects of case law are seldom long-lived.
In the longer term, it is likely that the real reason for the lack of subsequent OR cases was due to the introduction of Employment Tribunal fees in July 2013. As OR cases are generally about recruitment they are essentially speculative, as the complainant will not know whether the successful candidate was in any event better qualified than them. An unsuccessful candidate for recruitment, who is applying for many jobs, (and who may well not be earning) is precisely the sort of claimant who would be deterred from bringing a tribunal challenge against one particular organisation where their job application has not progressed because of the need to pay a fee.
In July 2017, Employment Tribunal fees were abolished, and we believe it will be open season again
Lucy McLynnPartner and Head of EmploymentT: 020 7551 [email protected]
Lucy is ranked by Chambers UK legal directory as a ‘Leader in Employment’. She is a regular advocate in the Employment Tribunals and the Employment Appeal Tribunal, including in numerous reported cases, acting for both employers and employees. She was the advocate in the case of Muhammad v Leprosy Mission International referred to in this article. She has a particular interest and expertise in advising on discrimination, the status of atypical workers, whistleblowing, maternity and working time issues.
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for such claims. Faith-based organisations should be ready for more challenges on their recruitment practices. This is not a reason for employers to feel that the legal exemption that exists for ORs should not be used, but you should ensure that it is being used appropriately.
We set out below what we consider to be the cardinal principles to be taken into account when applying ORs.
1. Be clear about whether you are relying on the ‘nature’ or the ‘context’ of the job (or both – but both are not necessary).
2. If the occupational requirement is due to the ‘nature’ of the job then the faith in question must be integral to that post, not just a ‘nice to have’.
3. The ‘context’ of a job can be specific to that post, for instance – potentially – where it is based (eg, in a place of worship).
4. Context can also apply to an overall context of an organisation. As the Leprosy Mission case demonstrated, where prayer is an integral part of the organisation’s work, a blanket occupational requirement could apply to all posts.
5. If you are applying an OR you should be upfront about it and declare it in the job advertisement or at least in the application paperwork. Organisations may be concerned that this may, in itself, expose them to claims from litigants who are looking for a dispute of this kind, but if you are clear that a post is subject to an OR you should not waste the time of non-eligible candidates in applying for that post. If you do, you should not expect much sympathy from a tribunal, which will, in all likelihood,
consider that the fact the OR is being applied in a less than transparent way demonstrates its lack of legitimacy.
6. Keep your ORs regularly under review to ensure that they are still legitimate, as organisational circumstances and roles change over time.
7. Consider alternatives to applying an OR. Would it suffice to have staff sign up to a set of shared values instead? This will be relevant to the question of the proportionality of the OR.
8. If you are applying an OR to a certain type of post, do not make exceptions for individual staff members who do not meet the OR (unless there are reasons to do so specific to their post, rather than their personal circumstances) or you will undermine the need for the OR for the other posts.
9. Define clearly what the ‘faith’ is that you require. If your faith requirement is broad (for instance, ‘Christian’), would members of all denominations be acceptable in your organisation (for instance, Jehovah’s Witnesses)?
10. Keep a paper trail that demonstrates the basis for the OR, and that this was established before any challenge was made. It is always helpful to have minutes of trustee board or senior management meetings at which the need for an OR was carefully considered before being applied to a job.
By following the above advice organisations should minimise the risk of tribunal claims – or be well positioned to defend them if and when they do arise.
Find out moreBWB acted for The Leprosy Mission in the case of Muhammed v The Leprosy Mission International, in which it was successfully argued that recruiting only Christian staff was a legitimate OR in the circumstances. Please click here for a summary of the case: www.bwbllp.com/knowledge/2018/01/23/muhammed-v-leprosy-mission
“Faith-based organisations should be ready for more challenges on their recruitment practices. This is not a reason for employers to feel that the legal exemption that exists for ORs should not be used, but you should ensure that it is being used appropriately”
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Augustus Della-Porta shares his personal road to Damascus
The story of my faith really has been a journey. I have been privileged throughout my life to have had opportunities to explore many faiths and meet some fascinating people along the way. I spent 10 years at a boarding school run by Benedictine monks where faith was a key part of everyday school life, including, as a 17-year-old, spending a weekend in the monastery working and praying alongside the monks.
I took a gap year and volunteered with the Sisters of Mother Teresa, first in Zagreb during the Bosnian war (including crossing front lines with a handful of other hardy pilgrims to visit the pilgrimage site of Medjugorje in Bosnia) and then in Calcutta working in a home for the dying and a street school. The days started with prayers attended by Mother Teresa, who inspired and humbled in equal measure, and involved working alongside her sisters, the epitome of faith in action.
I went on to study theology at university. Having previously focused on Christianity, here I was studying theology in its widest context, from Jungian psychology and religion, mysticism and madness, to Hindu philosophy. It was also the first time I had the opportunity to study Islam.
As part of my degree I spent a year in Jerusalem, studying in West Jerusalem but living with a Palestinian family in the West Bank. As well as the mind-blowing experience of wandering around some of the holiest sites in Islam, Judaism and Christianity, all within a few minutes’ walking distance of each other, being welcomed into a Palestinian Muslim family and the wider community allowed me to experience Islam as a living, breathing faith. Alongside Hebrew, I started studying Arabic and was fascinated by the script and how it is incorporated into Islamic art and architecture. There was something so simple and so pure about how the profession of faith or the name of God could be intertwined into the decoration and architecture of a mosque.
My faith journey The journey towards faith can involve a literal, as well as a spiritual journey. Profound, immersive experience of faiths in their lived environments can have huge impact.
Augustus Della-PortaSenior associateT: 020 7551 [email protected]
Augustus advises charity and social enterprise clients on commercial, contractual, governance and charity law matters. He works with a broad range of not-for-profit clients, including Muslim and other faith-based organisations and organisations working in the Arab region.
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After university, I decided to continue my Arabic studies and went to Damascus, Syria, another city rich in religious significance. Living in the old city, I was next to the chapel of Ananias near the street called Straight Street and the awe inspiring seventh-century Umayyad mosque, with a shrine dedicated to John the Baptist, venerated by both Muslims and Christians alike. I was lucky enough to meet some amazing individuals – from the leader of a Sufi order at a traditional dhikr ceremony, to the world-renowned Islamic scholar Shaikh Ramadan Al-Bouti, to my fellow English teacher Kareem who later taught me how to pray.
I also lived at one point close to the tomb of great Sufi mystic Ibn Al Arabi, who has written some of the finest Arabic poetry, one my favourite quotes being ‘I follow the religion of Love: whatever way Love’s camels take, that is my religion and my faith’.
As my Arabic improved I was able to appreciate Arabic poetry and listen to recitations of the Quran. My decision to convert to Islam was a culmination of a number of events: conversations with Muslim friends – including Bedouin friends in Palmyra; reading the Quran for myself in Arabic; experiencing the faith in daily life – Ramadan, in particular, with its month-long fasting and communal breaking of the fasts, even the musaharati, who wakes people up to have their last meal before fasting begins; and the central role of charity in daily life. One moment stands out: waking up one morning in my Arabic house in the middle of the old city of Damascus to the call to prayer coming from the half a dozen mosques around me, each with their own distinctive muezzin whose voice I had come to recognise.
I married my wife in Syria and lived there in total for four years, no longer just a foreigner but part of a Syrian Muslim family and an honorary Syrian. These past few years during the Syrian conflict have been tough for my wife and her family. Losing a brother, with the rest of her family surviving in a besieged suburb of Damascus, and uncles, aunts and cousins fleeing as refugees; faith has been what has kept our family strong.
In my work at BWB I have been fortunate to be able to work with and support many Muslim-led charities large and small, including those carrying out life-saving work in Syria. Their staff and volunteers work in extremely difficult circumstances but each of them embody that humanitarian principle set out so simply and beautifully in the Quran: ‘whoever saves the life of one, it shall be as if he had saved the life of all of mankind’ [Quran 5:32].
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Philippa Masters Trainee solicitorTel: 020 7551 [email protected]
Philippa is a second-year trainee, currently sitting in the Public & Regulatory department. She was previously a paralegal in the Charity & Social Enterprise team.
Case and recent work roundup
Case and Charity Commission roundup
Plymouth Brethren Christian Church Gospel Hall Trusts
In 2012, one of the Plymouth Brethren Christian Church Gospel Hall Trusts applied for charitable status and was rejected. The Charity Commission was not satisfied that the organisation was established for public benefit; one concern being the Plymouth Brethren’s doctrine of separation from the rest of society. The group appealed to the Charity Tribunal but the case was eventually dropped. In 2014, the commission accepted the group’s charitable status, after it agreed to amend its trust documents.
The Charity Commission has now published a report concerning the charity’s compliance with its regulatory requirements, particularly focusing on compliance with its deeds of variation, as these were the basis for granting charitable status. The commission report finds no evidence of significant regulatory issues, although it sets out areas where the commission has provided advice to the trustees, including on the control of charitable collections. There were also concerns about the treatment of former members of the Brethren by members of the congregation. The commission accepted that the trustees had not contravened the deed of variation and that they are not responsible for the behaviour of individual members, whose dealings with their family and others are their own choice, but said that it expects the trustees to ensure the deed of variation is available to members and to discuss the provisions with them. Most importantly, the commission said it has seen sufficient evidence of engagement with the wider community to demonstrate public benefit.
This case shows the extent to which the Charity Commission may be willing to negotiate and accept amendments to constitutional documents; however, it also demonstrates the commission’s high level of scrutiny of charities which fall close to the borderline of its definition of ‘public benefit’.
The National Council of Hindu Temples
The Charity Commission is investigating the National Council of Hindu Temples, after it was accused of inviting a radical speaker to an event at the House of Commons. The commission has opened a compliance case to assess concerns raised about a speaker at an event linked to the charity, and also noted that it had previously issued regulatory advice to the charity on similar issues. This may refer to allegations that the charity campaigned in favour of the Conservatives during the 2015 and 2017 elections.
The current investigation concerns a seminar held in October 2017 called ‘tolerating the intolerant’. Tapan Ghosh, the event’s keynote speaker, has been accused of holding far-right Hindu nationalist views about Islam. The charity was challenged for inviting him to the event in an open letter signed by a number of interested parties.
Naz Shah MP raised the matter in the House of Commons, telling parliament that: ‘Mr Ghosh holds abhorrent views, is on record calling on the United Nations to control the birth rate of Muslims and praising the genocide of Rohingya Muslims in Burma, and also said that Muslims should be forced to leave their religion if they come to a western country.’
The charity explained in a statement that the event in question raised concerns about religious discrimination in Europe and abuse against Hindu and Sikh girls and the speaker was invited in that context. Bob Blackman MP, who attended the event, confirmed to parliament that the speaker was invited only to give evidence of abuse happening to Hindus and Sikhs and that he made no abhorrent remarks at the meeting.
This case is further evidence of the Charity Commission’s hard stance on extremism.
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Latify v Alumyar 2017
In December 2017, the High Court of Justice dismissed a claim to remove a number of charity trustees who were managing the Afghan Islamic and Culture Centre (AICC) in Willesden, London. The dismissal of the claim was on the basis that in general, the Management Committee failed to comply with AICC’s 1997 constitution.
The AICC has been an unincorporated association since 1997 and operates as a mosque principally for members of the Afghan Muslim community. The claimants and defendants were all members of AICC’s Management Committee and they were in dispute over whom should control the AICC and how the AICC should be run.
The claimants relied on the claim that the defendants purported to be elected at a disputed extraordinary general meeting of the AICC in April 2016. Thus, they were currently acting as de facto charity trustees and should be removed as members of the Management Committee.
LJ Murray dismissed the claim on the grounds that generally from time to time, all trustees failed to observe the requirements of the 1997 constitution particularly in relation to conducting and administering their meetings. LJ Murray further criticised the administration of the AICC which he believed was conducted more in line with cultural practices of the Afghan Muslim community rather than with the requirements of English law.
The court ruled that, although AICC unquestionably exists as a body of members with charitable objectives and means to carry out those objectives, the failures of the charity trustees to comply with the 1997 constitution has led to a prolonged and costly dispute. LJ Murray noted the necessity of the trustees to remedy the constitutional failures of the charity and consider ways of improving the charity’s governance in accordance with AICC’s objectives.
The judgment in Latify v Alumyar reinforces the individual and collective obligation that charity trustees have under the Charities Act 2011 to ensure that their charities are complying with their governing rules. The judgment also highlights the increasing importance for good governance and accurate legal advice for charitable organisations.
Potential charges
Helen Stephenson, CEO of the Charity Commission, has published a blog post setting out the commission’s case for increased funding. She also announced that the commission intends to consult on the potential of a charging scheme for regulation, noting that the discussion would focus on larger charities. The rate of the charges, if implemented, may be variable and is likely to exclude smaller charities. More recently Stephenson has suggested that charges may focus on the advice and enabling aspects of the Charity Commission’s work, with enforcement being covered by public funds.
Case and recent work roundup
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© Copyright Bates Wells & Braithwaite London LLP January 2018
The information in this update is necessarily of a general nature. Specific advice should be sought for specific situations.
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