TRUST: Consider whether the following purposes are, and ought to be charitable. Various examples fol

Consider whether the following purposes are, and ought to be charitable.

(a) providing scholarships to assist students to learn ballroom dancing while at university. With the condition that the trustees may, in applying up to 75% of the income of the trust, give preference to children of employees of Capezio Ltd. ;

(b) campaigning for a modern national health service in Ishmaliland, a country plagued by poverty and disease, where there are strong religious objections to medical procedures which involve any invasion of the body, such as surgery or vaccination by syringe;

(c) support of the work of Osiris, a cult whose way of life and philosophy is based on an interpretation of ancient Egyptian supernatural beliefs, and whose doctrines require adherents to cut themselves off entirely from their families and retire to Osirian communities, where they make themselves available several times each month to discuss their faith with members of the public.

In deciding if a purpose of either a trust or corporation (henceforth trusts) is charitable at law it must fall within one of the four heads expressed by Lord McNaughton in Pemsel, anything else is non-charitable. The precedent, which interprets the repealed preamble to the Statute of Charitable Uses (1601), lays the foundation of how the Charities Commissioner and the courts decide what constitutes charitable for the purpose of the law. The classification can have vital effect on a donee's intentions, so just because he, or the general public, think it charitable does not give it charitable status. It is for the Charities Commissioner to decide, on analogy, if it falls within on of the four heads. Appeals are allowed to the courts. Charitable status gives the benefit of certain tax exemptions, removes the need inherent in the beneficiary principle and circumvents the rule on perpetuities that can be critical in saving trusts. Trusts can also change their intended aims through the doctrine of cy près if the original aims become obsolete or unworkable although different rules apply dependant on if they originally or subsequently fail.

The scholarship to assist students would at first sight seem to be for "...the advancement of education..." thus charitable. It is questionable if, however, ballroom dancing is educational, thus it ought to fall outside this head, we will consider that later. If the scholarship is to be given to students to learn ballroom dancing, by analogy with courses to teach drama or other forms of arts, it would be charitable. If however it is a condition of any grant that the student learn ballroom dancing then it may not be educational, merely recreational and would have to pass the test in the Recreational Charities Act (1958) s.1. It would seem that the House of Lords now takes a liberal view if the objective is to teach (learn) rather than merely play so much so that stimulation of the art of acting was held educational and for the benefit of the community. However mere entertainment, providing dances for the Welsh community in London, was not held charitable, thus the distinction between education and recreation can be vital. If it were not educational then on the authority of Williams-v-IRC it would not be any other purpose beneficial to the community, but Re Shakespeare Memorial Trust would suggest the contrary view that it is of benefit being both educational and beneficial to the community. The answer then is unclear.

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Where the purpose might fail is the condition that 75% of the income be applied on preference to children of Capezio Ltd. It was originally held invalid to settle on trust if such a gift was confined to a personal nexus, e.g. for education of children connected with an employer. However this was doubted by Lord Cross in Dingle-v-Turner although in the context of relief of poverty. Lord Cross continued by suggesting "...In the field of poverty the danger is not so great as in the field of education - for while people are keenly alive to the need to give their children a good education...they are generally optimistic enough not to entertain serious fears of falling on evil days before they fall on them." Thus suggesting education funds were a perk not a benefit. Adding to the confusion, the courts have held charitable an educational trust where 75% of the funds were to be given preferentially to employees families. This was doubted in the Metal Box case and by the Privy Council but has been followed by the Charities Commissioner in three cases. Moffat thus suggests that this is a loophole in the law allowing "...private companies' purposes to be furthered in the guise of charity..." thus it would seem this purpose would survive.

The advancement of education is, if we believe relief of poverty to be the main aim of charity, a natural evolutionary progression in an industrialised society. Prior to the industrial revolution there was no need to educate people in a strict sense because education did not form part of the matrix of society in that the ability to read and write did not determine productivity. With the introduction of industrialisation the need for a skilled workforce has necessitated a more formal training market. Without education our skills' base would be eroded to that of a third world country. The argument is that the relief of the state burden on each individual allows the rest of society to benefit because of the increased percentage of funding. This saving is often oversimplified in that the savings to the state could be offset against the reduced benefit of taxation. The other Lords in Dingle-v-Turner thought that such a calculation impossible because there were so many variants but did not express completely why. What, however, of the provision of non-academic education? Gardner suggests that charities in effect subsidise the state, would the state therefore wish to forward the teaching of ballroom dancing? Probably not but this is not definitive in light of the Recreational Charities Act. The problem is that once an analogy is settled it would be difficult to reverse as recognised in the field of religion in the White Paper (1989).

The Charities Commissioner lays down strict guidelines for the campaigning of charities so dependant on how the campaign is to be run will outcome its status. The campaign could be one of raising funds for other charities, which is regarded as charitable if "...the recipient charity is expressly or by implication a purpose of the donor charity...", if not then the money raised would be expenditure for non-charitable purposes and the trustees in breach of trust. If Osiris wished to raise money itself for the provision directly of medical supplies then under the benefit to the community it would almost certainly be regarded as charitable. The courts have, by analogy, defined health as charitable and since charities can raise funds in the United Kingdom for work overseas (e.g. Oxfam, Band-Aid) it would seem that this is a valid purpose.

The other alternatives are that they wish to campaign either in the United Kingdom or in Ishmaliland to change the law or government opinion. This is not charitable as the purpose is political as defined by the Charity Commissioner and the courts. Only campaigns annexed to the charitable purpose and that further the aims can be lawful, it would therefore seem that a purpose solely to campaign on any issue without an object can never be charitable. Here the courts have taken the view that to enforce political purposes would be difficult for both the nominal beneficiary, the Attorney General, because he is a political appointment and for the courts who profess to being non-political. Gardner suggests that this can be circumvented thus purposes defined as supporting single father could replace anti Child Support Agency groups however this would not save all purposes if they contradict more acceptable purposes i.e. saving animals is less important than saving humans.

There is also the question of whether it would be invalid because it attempts to attack one form of religion. This could only be circumvented if the health service did not include surgery but advanced oral medicines and other non-intrusive methods to combat disease i.e. dietary advice, although this seems at odds with a notion of modern health services. Thus charities have to campaign through the back door or hive off the political parts. It is clear that there have been no major exponents of reform with regard to allowing political activities in charities. To suggest that they should would therefore be at odds with one of the few areas in charity law where there is agreement.

In determining if the support of Osiris is a charitable purpose we must ask if they can be described as a religious organisation. Religion is the supernatural belief and worship of a god, or "...man's relationship with god...", thus natural beliefs or atheism cannot be religion but "...any religion is better than none...", and The Charities Act (1993) gives reference to religion other than Christian. This however is subject to the exception that certain spiritual reverence is seen by the courts as superstitious, but this seems to be confined to dubious notions of reverence such as mediums. The attack of one form of religion is also not religious and although there is no authority it can be suggested that worship of black magic would also not be charitable "...it [the law] neither preferred one religion to another nor one sect to another unless it was shown that the doctrines inculcated were adverse to the very foundation of all religion and were subversive of all morality...". There is a secondary point as regards whether the discussion of faith could be educational in the sense that they interpret the original philosophy and as such are researching its doctrine. Research is defined as charitable if it "...improves the sum of communicable knowledge in an area where education may cover..." or even be "...of educational value to the researcher..." although these seem tentative links. Finally it could be that the purpose is charitable under the forth head following the reasoning in Re South Place Ethical Society that their work is of public benefit if there were "...mental, moral or religious improvements [to the public]."

It should also not be for the benefit of its members, there must be some public benefit. Thus nuns who hide away from society confer no benefit even if their prayers are for the salvation of the community as a whole. The public benefit is missing because "...any benefit by prayer or example is incapable of proof in the legal sense...". However it is clear that any purpose that advances religion e.g. the upkeep of a church is charitable whereas parish work is not as it involves some non-religious purpose. It would seem then that if the money were to support the Osiris in there daily living then it would not be charitable as this is not of benefit to the community but if it is for the furtherance of making themselves available to the public alone then this seems to be charitable thus for example payment for masses said in public were held to benefit the community if, and only if, that is what the money was used for. Discussion of their faith would seem to extend the notion that mixing with the community was of benefit and these discussion groups seem open to all. In fact the links between benefit to the public and actions of the purpose are almost open-ended, thus worshipers at a Jewish synagogue who mixed in the community transferred the benefit by rubbing shoulders with the community, "...edification by example...".

It would therefore seem that Osiris is charitable under the first head of advancement of religion. Whether they ought to be very much depends on the view taken of religion as a whole. Much of the case law in the last century seems to suggest that the Roman Catholic faith and others, being opposed to the dominant Church of England Protestant Reformation led the courts to dismiss all other faiths. It is only in the last fifty years that recognition of alternative faiths has prevailed. Moffat questions whether, in an increasingly secular society, religion fulfils the role it once provided. Historically the church provided, at least in part, for the welfare of the poor, thus charity was seen as relief of the poor. However such notions are far removed in today's society where welfare is oft the preserve of the state. If religion is the moral enhancement of the individual then why should atheists subsidise them. It is clear that because of its historical past Christian religion will not lose its charitable status and as such the proliferation of alternative faiths, to be equitable, will continue, the fear of fixing a new definition to charity seeming to hot politically for Parliament and not the preserve of the courts.