There are two types of trusts , private and public trusts. A private trust is for the benefit of an individual or class which are enforceable by the beneficiaries. A public trust is a charitable trust and is the relevant trust to this assignment. A ch...

However, in contrast a gift to provide a contribution towards the holiday expenses of workpeople was held not charitable, on the grounds that they could not be described as poor within the meaning of the preamble. Furthermore a gift working class families was not deemed to be charitable.

The preamble has long recognised trusts for the advancement of education as charitable trusts. In order for a trust for the advancement of education to be charitable it must be for an educational purpose, fall within the spirit of the preamble and must be available to the public or a section of the community. It is stated by Professor Moffat that the phrase ‘advancement of education’, “now constitutes a very wide category of charitable purposes”. Furthermore  Buckley J defined the phrase as “extending to the useful branch of human knowledge and its public dissemination”. It is evident from the case law in this particular area that the meaning of what constitutes education has evolved. It would be apparent in many cases that a particular gift is valid, such as law, medicine and the study of history. By contrast there are cases where the object lack seriousness to be deemed as educational with in the meaning of the preamble. These may include the study of racing or football and a public exhibition of junk, which are not charitable objects.

Occasionally it will depend on the way in which the activity or faculty is run in order to fall within the spirit of the preamble. Picarda states, “Where school children are the intended beneficiaries of a gift the courts have usually shown themselves willing to stretch the concept of education to very benevolent limits”. This was shown in Re Mariette and Re Geere’s WT where a gift of £10,000 to Marlborough College for the provision of ‘a proper swimming bath and hot water baths’ was a valid charitable gift. In Re Mellody Eve J upheld an annual treat day for school children. Tyssen has commented that Re Mariette and Re Mellody ‘go to the verge of the law’..

In IRC v McMullen, Lord Hailsham emphasised that a liberal interpretation should be given to the meaning of “education”. He reaffirmed that “both the legal conception of charity and within it educated man’s ideas about education are not static, but moving and changing. Both change with changes in ideas about social values.”

Nevertheless, both the courts and the Charity Commissioners now appear to be less prone to hold trusts concerned with international and race relations non-charitable on political grounds. This highlights the diversity of what constitutes “educational” and Lord Hailsham dicta in McMullen is evident today.

Whether a trust has adequate educational value is in the final analysis a question of degree for the courts. The court may settle the question in the light of its own judicial knowledge.

The advancement of religion is also a charitable purpose, which was not mentioned in the preamble, the nearest approach to it being ‘the repair of churches’. Nevertheless the purpose of preamble was to demonstrate charitable purposes rather than draw up an exhaustive definition of charity. According to Lord Hanworth M.R the advancement of religion meant “the promotion of spiritual teaching in a wide sense, and the maintenance of the doctrines on which it rests, and the observations that serve to promote and manifest it”.

The subject of what constitutes religion has been significantly altered over the time. The case law in this area shows that a number of non-mainstream religions have gained charitable status. Two trusts associated with the Unification Church have registered charitable, as has a trust for the publication of the works of Joanna Southcote. Similarly with regard to organisations which exist for the advancement of religion, such as the Church Army, the Salvation Army, the Church Missionary Society, the Society for the Propagation of the Gospel in Foreign parts, the Sunday School Association and the Protestant Alliance.

Outside the Christian religion, trusts for the advancement of the Jewish religion are undoubtedly charitable. Furthermore the Charity Commissioners have registered trusts for the advancement of the Hindu, Sikh, Islamic and Buddhist religions. Recently in Funnel v Stewart a faith healing movement was awarded charitable status, which Fletcher describes as ‘a danger of the language of charity being stretched too far in pursuit of benignancy’. On the other hand there have been considerable restrictions on the objects, which are not for the advancement of religion such as the Theosophical Society, South Place Ethical Society or the Church of Scientology.

This shows that the law of charity is evolving with social changes, as per Lord Wilberforce.

There are a number of new charities that come within the fourth head. However under this head public and community benefit must be proved, as it is not assumed. It is entirely up to the court/ Charity commissioners to decide from the evidence which purpose is admissible or relevant, whether a particular purpose is or may be beneficial to he community.

The courts appear to have two distinguishing routes to determine charitable status of new purposes within the fourth head. The first and the more restrictive of the two is known as the argument for analogy or the stepping stone approach. Dillon LJ took this approach in Barralet v A-G. Using this approach the provision of a crematorium was considered charitable by analogy with the upkeep of churchyards which itself was held charitable by analogy with the repair of churches mentioned in the preamble.

The second approach is more flexible and has been favoured in a number of modern decisions. It permits the court to consider whether the purpose which is under scrutiny is “within the spirit and intendment” or “within the equity” of the statute. This enables the court to hold purposes to be charitable which cannot be directly connected to one of the original purposes listed in the preamble. Sachs LJ described this wider test in the Council of Law Reporting case as having “an admirable breadth and flexibility which enables it to be reasonably applied from generation to generation to meet changing circumstances”. This shows that additions could be added to the preamble and the list was not exhaustive. However, Cracknell maintains that the Charity Commissioners will normally reject the wider test  in favour of the argument from analogy.

The wide scope of the fourth head is apparent from the accumulation of case law on the various objects. The main gifts under the fourth head are gifts for the benefit of a locality.

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It can be said that since the Pemsel's case is a classification of convenience but not a definition, there are purposes, which do not fit neatly into one or the other of the headings. This was evident in the case of  Scottish Burial Reform Ltd where it was not apparent whether the charitable purpose was  for the advancement of religion or for the benefit of the community. However it was held that the purpose was more beneficial to the community rather then the advancement of religion. This is further seen in Re:Hopkins, where it was stated that the purpose could either be for the advancement of education or for the benefit of the community. The case law used shows that it is often arguable that the facts of a case bring it under more than one head of charity, or that it does fit neatly into one rather than the other head, and the court may well declare a trust to be charitable without making it clear exactly on what grounds it does so, as per South Place Ethical Society.

The second issue that was stated by Lord Wilberforce was that of "the words used not being given statutory force to be construed,"

 There still is no statutory definition of charity, regardless of occasional proposals. The dictum of Viscount Simonds in IRC v Braddeley is still true today ‘no comprehensive definition of charity has been given either by the legislature or in judicial utterance’. The Nathan Committee recommended that there should be a definition based on Lord Macnaghten’s classification in Income Tax Special Purposes Commissioners v Pemsel. Also ignored were the recommendations of the Goodman Committee on Charity Law and Voluntary Organisations that the categories of charities should be restated.

The question of a statutory definition of charity was reconsidered in the White Paper, Charities: A Framework for the Future, which argued that any attempt to ratify a statutory definition was fraught with difficulty and would jeopardise the flexibility of the present law which was its best and most valuable features. It also agreed with the Goodman Committee that the case law that is used as precedents should not be swept aside. It has been suggested that the advantages of a definition could be illusionary in that it might result in “a fresh spate of litigation and provide a set of undesirable distinctions”. Looking at the suggestions from certain people mentioned above it would appear that to give a statutory definition would not only be difficult but it may well be at the cost of the flexibility of the current law in this area.

The law of charities has evolved significantly since Lord Macnaghten put forward his classification of charitable purposes. It still not possible to give an exhaustive list of charitable objects. The very language used by Lord Macnaghten indicates that he was not treating his classification as a ‘be all and end all’. As it was stated by Lord Wilberforce, the law of charity is a moving subject which has evolved since 1891. This is evident where the Charity Commissioners have recognised certain purposes as charitable that were not previously held charitable. This is illustrated in Re Strakosch, where the promotion of racial harmony was not seen as a charitable purpose, but is now held to be charitable purpose as it confers a public benefit. Moreover the purpose of a rifle or pistol club which was once charitable has now ceased to be charitable.

While it remains true that not every object beneficial to the community is necessarily charitable, it would be seen that the courts have in modern times adopted a broad approach to the preamble. This broad approach has allowed the concept of charity to evolve as the needs of society have changed. For instance charities for the advancement of education cover physical as well as mental education. Religion has been extended to cover spiritualists and the fourth head has been extended to a very wide range of bodies, which have been established in response to new public needs. Recently there have been proposals for the definition of charity to cover the unemployed and regeneration of communities'. It would appear that the judiciary may have been influenced to a certain extent when deciding subsequent cases. This may be due to the changing social ideas and policies, which have been mentioned above. Therefore, it seems that the approach that has been taken by the judiciary will mean that more purposes will obtain charitable status, as it seems that a trust will be considered charitable if a judge or a charity commissioner thinks that it accords with contemporary social ideas and policy on public good. However the courts have adopted an approach to referring back to the preamble when ever classifying whether or not a particular purpose is charitable or not in law.  The result, in Lord Upjohn’s words, is that ‘the spirit and the intendment of the preamble to the Statute of Elizabeth have been stretched almost to breaking point’.

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Bibliography

TEXTBOOKS

Cairns, E, Charities Law & Practice, Sweet & Maxwell, 3rd Ed.

Chesterman, M, Charities, Trusts and Social Welfare, 1978

Cracknell, D, Cracknell’s Law Relating to Charities, Longman, 2nd Ed, 1985

Edwards/Stockwell, Trusts & Equity, Pitman Publishing, 1997.

Hayton & Marshall, Comments and Cases on the Law of Trusts, Sweet and Maxwell, 10th Ed, 1999.

Hanbury & Martin, Modern Equity, Sweet & Maxwell, 15th Ed, 1999.

Moffat,G, Trusts:Cases & Materials, Butterworths,"nd Ed

Petit, P, Equity and the Law of Trusts, Butterworths, 8th Ed 1997.

Picarda, H, The Law and Practice relating to Charities, Butterworths, 2nd Ed, 1995.

Todd, P, Textbook on Trusts, Blackstone Press, 4th Ed, 1997.

Warburton, J, Tudor On Charities, Sweet & Maxwell, 1997.

ARTICLES

Cracknell, D, Charity Law Update, Sol Journal, 1999.

Driscoll, L, The Charities Acts 1992 & 1993: Five years on, Sol Journal, 1998.

Forder, C, Too Political To Be Charitable, Conv 1982, p 263.

Gravells, N, Charitable Trusts and Ancillary Purposes, Conv 1978, p 92.

Hopkins, J, Trusts for the Advancement of Sport – Recreational Charities Act 1958, The Cambridge Law Journal [1992].

Hutchinson, A, Recreational Charities – A change of Tactics Required? Conv 1979, p 355.

Norman, H, Fund-Raising for Maintained Schools, Conv 1995, p 454.

Pharoah, C, Charities – The changing scene, Sol Journal, 1998

Warburton, J, Charitable Trusts-Unique? Conv 1999, p 20.

REPORTS

Annual Report of the Charity Commissioners for England and Wales, 1989.

Charities: A Framework for the Future, 1989

Nathan Committee Report 1952

Report of the Goodman Committee: Charity Law and Voluntary Organisations (1976)

STATUTES

The Preamble to the Charitable Uses Act

Charities Act 1960, 1992, 1993.

Recreational Charities Act 1958

 

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