“The present loose framework for the definition of charity enables the courts and the Charity Commissioners to develop the law in a way which is sensitive to the changing needs of society. The introduction of a statutory definition might put at risk the flexibility of the present law, which is perhaps its greatest strength.”

...it is life and not logic, which has guided...  the law of charity.” 


nglish law has, for a long time relied upon a judicial understanding of what charity is by looking at which activities previous judges have accepted as meriting the description of charitable and analogising from those decisions.

The essential attribute of charity is that it seeks to benefit the public and it is this element that merits the special treatment such trusts receive.  However, the law also looks for a certain generic character in charitable activity and by the end of the 16th Century it was clear that some enumeration was needed of the activities which were thought to further the public good; this was first provided by the preamble to the Statute of Charitable Uses 1601, which for 350 years constituted the general statement of charitable purposes. These activities are today, vague and outdated, but the courts have consistently analogised contemporary activities with the preamble, while attempting to keep the law abreast of relative changes within acceptable boundaries.

In 1891, Lord Macnaghten sought to categorise the activities which were within the ‘spirit and intendment’ of the preamble and which had come to be recognised as charitable. He listed four categories: the relief of poverty, the advancement of education and religion and those activities, ‘beneficial to the community’. Each had its own degree of ‘public’ depending on the type of benefit in question. In the days when the State made few welfare provisions, trusts under these categories were clearly for the public benefit. The House of Lords have subsequently stated that there is no requirement for a ‘public’ benefit in poverty cases.

It is argued that the fourth heading is not a separate category but merely a reference to a continuing list of categories which do not fit within the other three, which can be adapted without need for a separate rule of its own. It is here that most new registrations are made, and in a climate that sees many traditional needs of society provided for from public sources, where progress is possible. From this flexibility, the concept of charity has widened substantially; e.g. educational charities can now cover almost any form of worthwhile instruction. Even chess is seen to be educational! although Vaisey J foresaw, “...a slippery slope from chess to draughts”. 

Conversely, it is suggested that ‘private’ charities could fill the gaps in the State welfare programme, but if a trust’s purpose is not appealing enough to justify public expenditure, should it justify the benefits to which charities are entitled? I have attempted to address this below.

Certain cultural assumptions are made when debating what is ‘charitable’. Broadly, for example, education and religion are beneficial. The courts, however, have had some odd debates as to whether certain sects are religious or not and what exactly education is. It has been suggested that there is real need to reform religious charities, either by extension under Article 9 of the European Convention on Human Rights or total abolition on the ground that public subsidy of religious faith’s forces the non-religious to support organisations they passionately disbelieve in. The courts however, assume that some religion is at least better than none. Private medicine and education are both charitable, but many believe that these are detrimental to those who are unable to afford them. Understandably, where substantial tax advantages are bestowed, somewhat technical lines appear between similar objects, and some say that these should no longer enjoy charitable status.

To proceed by analogy and adjust the law to current needs is made especially difficult, as judges find the dead hand of past social values constricting the way ahead; plus, the adversarial system may suit the resolution of disputes, but it is not suited to effecting social and fiscal engineering. Lord Macnaghten’s fourth category provides the basis for a contention that if a purpose is beneficial to the community, then it is prima facie charitable and that adherence to analogy is too restrictive.

In 1950, the Nathan Committee was appointed to look into the Law and Practice relating to Charitable Trusts and when they reported in 1952, many were looking for a new definition of charity. This, it was hoped, would embrace the purposes which already found acceptance and draw a perimeter around the concept of charity which was flexible enough to adjust to changing views. The Committee recommended that a new statutory definition of charity be enacted; however, the Government decided to retain the flexibility which the present situation provided.

Join now!

The diversity of activities... which have qualified as charity is part and parcel of the concept...

Although the 1601 Statute was repealed, the preamble remained until 1960; but no new definition of charity was forthcoming and case law continued to serve as the source of principles of charitable purposes. However, such evolution makes it impossible to define a core meaning to what is charitable.

“...[The English courts have] taken strong liberties upon the subject of charities.”

Prior to the twentieth century the main function of public trusts was to recognise that certain objects, provided they were ‘public’ in the ...

This is a preview of the whole essay