National Anti-Vivisection Society v Inland Revenue Commissioners
[1947] 2 All ER 217(Judgment by: Lord Porter)
National Anti-Vivisection Society
v Inland Revenue Commissioners
Judges:
Viscount Simon
Lord Wright
Lord PorterLord Simonds
Lord Normand
Judgment date: 2 July 1947
Judgment by:
Lord Porter
My Lords, the question what is or is not a charity is always a difficult problem partly, I think, owing to the fact that the meaning now attributed to the word is derived from the preamble to the Act of Elizabeth, which, though the Act itself has been repealed, has been re-enacted, and gives a kind of example of the class of matters then held to be charitable. From this beginning legal decisions have extended the meaning of the word to many matters which would not originally have been included. But the difficulty does not lie in the origin of the doctrine alone. It is, I think, inherent in the subject-matter under consideration. Whether any two persons would agree in all cases as to what "charity" should include is at least doubtful. It is not the law but the diversity of subjects which creates the difficulty. A step towards a closer definition was, however, reached in Pemsel's case in Lord MacNaghten's well-known speech dividing charitable objects into four classes, with the result that, at the present day, all claims to embrace an object under the head of a charity must assert that it comes within one of the four classes. In the present case the society claims to come under the fourth head. Lord MacNaghten says ( [1891] AC 583 ):
'Charity in its legal sense comprises four principal divisions-trusts for the relief of poverty: trusts for the advancement of education: trusts for the advancement of religion: and trusts for other purposes beneficial to the community not falling under any of the preceding heads.'
In this language it might well have been argued that trusts for any of the first three objects were charitable whether they were beneficial to the community or not, but that inclusion in the fourth class is only permissible if such benefit can be shown. I cannot, however, find, that such a contention has been put forward. It was expressly repudiated by both sides in the present case and rejected by Russell J in Hummeltenberg's case ([1923] 1 Ch 240). One must take it, therefore, that in whichever of the four classes the matter may fall, it cannot be a charity unless it is beneficial to the community or to some sufficiently defined portion of it.
The difficulties of the present case arise firstly in determining what is of benefit to the public and who is to determine that question, but a not less difficult, though perhaps less subtle, question is whether the objects of the society are political within the meaning of that word as used by Lord Parker in Bowman's case ( [1917] AC 442 ). The facts are fully stated by Lord Simonds, and he quotes the material passages from the findings of the commissioners. In so far as those findings are for them and are determinative of the matter in issue, your Lordships are of course bound by their decision. The only questions, therefore, are (1) whether the finding of the commissioners that "the main object of the society is the total abolition of vivisection ... and (for that purpose) the repeal of the Cruelty to Animals Act, 1876, and the substitution of a new enactment prohibiting vivisection altogether" amounts to a finding that the society's object is political in the sense in which that word is used when it is said that political objects are not charitable, and (2) whether the finding that "any assumed public benefit in the direction of morals and education is far outweighed by the detriment to medical science and research, and, consequently, to the public health, which would result if the society succeeded in achieving its object and that, on balance, the object of the society, so far from being for the public benefit, it gravely injurious thereto" is a finding of fact as a result of which your Lordships ought to hold that the objects of the society are not charitable.
My Lords, before dealing with the first question, I would desire to point out that, read strictly, the second finding would appear to contrast moral and educational advancement with the public health and so to contrast an ethical with a material benefit. It was, however, strenuously and, I think, successfully urged by the Crown that this was not an accurate summing up of the position. The object of curing human or even animal illness and suffering itself aims at a moral end and the question is not fairly stated as a conflict between material and moral benefits, but, as counsel for the society was prepared to accept, as a conflict between one ethical outlook and another. His point was not that the material must give place to the moral but that the commissioners or the court are not empowered to decide such a question. In the words of Chitty J in Foveaux's case ([1895] 2 Ch 503) the court "stands neutral." The commissioners, against their own judgment, felt themselves bound to follow the opinion of Chitty J in that case. MacNaghten J however, and the majority of the Court of Appeal (the Master Of The Rolls dissenting) took a contrary view. In both cases the decision turned on the second point. Neither tribunal decided the first though it is obviously important and, as I understand, in the view of the majority of your Lordships, is determinative of the present case in favour of the Crown.
1. As Lord Simonds points out, it is curious how scanty the authority is for the proposition that political objects are not charitable, and the only case quoted by Lord Parker in Bowman's case, viz, Re Themmines v De Bonneval , turned upon public policy and not upon what, apart from that question, is or is not a charity. Moreover, the illustrations given by Lord Parker ( [1917] AC 442 ), of the political matters which he had in mind, "The abolition of religious tests, the disestablishment of the Church, the secularization of education, the alteration of the law touching religion or marriage, or the observation of the Sabbath," are, I think, primarily matters which could not be effected without an alteration of the law. The object in each case is to do away with a positive injunction to which an end can only be put by repeling the law; an Act of Parliament is required in order to do so. An example may be taken from the first illustration given by Lord Parker. No agreement come to by individuals or groups could dispense with the obligation of complying with the provisions of the Test Acts, whereas slavery or vivisection could be put an end to without disobedience to the law if all members of the community could be induced to desist from these practices. It is in the narrower sense in which I think the phrase "purely political objects" is rightly used, ie , as applicable to objects whose only means of attainment is change in the law. I cannot accept the view that the anti-slavery campaign or the enactment of the Factory Acts or the abolition of the use of boy labour to sweep chimneys, would be charitable so long as the supporters of these objects had not in mind, or, at any rate, did not advocate, a change in the laws, but became political and, therefore, non-charitable, if they did so. To take such a view would to me be to neglect substance for form. The object was to stop slavery or the use of boy chimney sweeps, and to ensure that certain minimum requirements were carried out in factories. All this could be done by common consent, though no doubt the only effective method would be to alter the law. But persuasion, not force, was a possible means of effecting the desired purpose. So, in the case of members of the society, a conceivable, though a very unlikely, way of effecting its purpose would be to persuade mankind to cease from experiments on animals, and it is possible that its members would prefer success by that means, though I have no doubt that would frankly admit that they saw no possibility of such an event. They would not, however, be asking anyone to break the law by refraining from vivisection. Their primary object, as I see it, is to prevent animal suffering caused by vivisection, though a main method of effecting that end is to repeal the present Act and such repeal is in that sense a main object of the society. As the commissioners say:
'We are satisfied that the main object of the society is the total abolition of vivisection and (for that purpose) the repeal of the cruelty to Animals Act, 1876, and the substitution of a new enactment prohibiting vivisection altogether.'
And again:
'We agree that the alteration of the law by means of legislation is a main purpose of the society.'
In so far as the decision of Rowlatt J in Inland Revenue Comrs v Temperance Council is inconsistent with this view, I do not agree with it, though a distinction might be made between that case and this inasmuch as there legislation is put in the forefront of the object of the council, and some support for this view may perhaps be gained from the decision in Re Hood . Moreover, as the commissioners point out, this point was as open and as valid in Re Foveaux as in this case and yet it was never taken. For these reasons, which perhaps differ a little from those presented by the Master Of The Rolls, I agree with his view upon this point and inasmuch as none of the other members of the court below dealt with it do not find myself at difference with any of their expressed views.
2. On the second point the Crown says that the object, if it is to be charitable, must, like any other charitable object, be for the benefit of the public; the commissioners have held that "on balance the object of the society, so far from being for the public benefit, is gravely injurious thereto": that that finding was one of fact and conclusive of the case as against the society. The society, on their part, maintain that trusts inculcating humanity towards animals are (as has frequently been held) for the public benefit and that it is not for the commissioners or a court to enter into what may be fine distinctions as to the question of the quantum of benefit as opposed to the disadvantages. The conflict, as I see it, is between the view held by Chitty J in Re Foveaux and the criticisms or suggested criticisms of that view to be found in the judgment of Russell J as he then was, in Re Hummeltenberg , and the Court of Appeal of whom Russell LJ formed one in Re Grove-Grady . Any observations of that learned judge, whether in the court of first instance or the Court of Appeal or in your Lordships' House, even though not strictly an essential part of his decision, could only be differed from with great diffidence and it is therefore necessary to consider their exact bearing in the cases in which they are found. One thing is certain and was not contested by counsel for the society-the intention of the donor in making the gift cannot affect the result. The question must be judged independently of his idea of what is or is not charitable, but, undoubtedly, as has been pointed out more than once, a gift for the protection of animals is prima facie at any rate a good charitable gift. It is enough in this connection to refer to the observations of Swinfen-Eady LJ in Re Wedgewood ([1915] 1 Ch 122). Such a gift then being prima facie charitable must remain charitable unless its charitable nature is taken away because on the whole it does more harm than good in the eyes of some tribunal authorised to determine that question. Chitty J as I understand him, said in Re Foveaux ([1895] 2 Ch 503) that that question was not one which the tribunal of fact was entitled to decide. The court or the commissioners, as the case may be, were authorised to determine whether the object was one of a class which was or had been held to be charitable, ie , whether it was one of a class which prima facie benefited the public. After that the tribunal remained neutral. It was not for it, in a conflict of opposed opinions, to analyse further the beneficial or injurious results of the gift.
Foveaux's case has more than once been quoted since its decision and apparently accepted without criticism, except in so far as Lord Russell can be said to disapprove of it, and save for such qualifications of the acceptance of its doctrine as may have been implied in the earlier case of Re Douglas . In Re Wedgewood it appears to have been accepted without comment by Kennedy and Swinfen-Eady LJJ and Lord Hanworth MR cites it without criticism in Re Grove-Grady . Moreover, its principle does, I think, receive support from such a case as A-G v Marchant . It is quite true that in that case Kindersley V-C, refused to increase a gift of doles proportionately with the increase which he granted to a number of other charitable objects on the ground that doles, though for the relief of poverty, were harmful rather than beneficial, but he acted in this way only with regard to accretions to the original gifts on the ground that the court had a discretion, where the original gift has been unexpectedly augmented, to add or not to add to the sum originally given to any one of the different objects. The original gift itself presumably was just as harmful as the accretion would have been, but that portion of the dole he did not, and indeed it was not suggested that he could, touch. Re Campden Charities also turned upon the discretion which the court was given of varying the objects of a charity, where, but only where, a scheme was settled cy-pres by the Charity Commissioners as a result of a complete change in the character of the neighbourhood and in the value of the gift. The judgment deprecated the giving and denied the benefit to be obtained from doles but nowhere said or attempted to say that to give them would not be a good charity. All it decided was that where the court was bound to administer the funds cy-pres it had a discretion as to the object to be included in the scheme and was under no obligation to perpetuate doles.
There remains for consideration Lord Russell's two warnings. In Hummeltenberg's case he was discussing the question whether the intention of the giver plays any part in making the object charitable or not, decides that it has no effect, and adds ([1923] 1 Ch 242):
'In my opinion the question whether a gift is or may be operative for the public benefit is a question to be answered by the court by forming an opinion upon the evidence before it.'
It will be observed that the opinion which the court has to form is as to whether the gift is or may be for the benefit of the public, not as to whether on the balance of evidence the scale inclines one way or the other. If the latter were the true meaning I do not know why the words "or may be" were added. The phraseology is at least capable of the interpretation that the court has to determine whether the gift comes within the category of things beneficial to the public, not whether, on balance, the tribunal holds that the disadvantages attached to it outweigh its benefits. Re Grove-Grady was concerned with this very point, viz .: was the gift in question within that class which could be held to be a charity? The Court of Appeal differing from Romer J, held by a majority that it could not, because there was no benefit to the community is a devise to form a reserve for animals of all kinds, wild or tame, free from the interference of man and with no provision even for his observation of the result: see [1929] 1 Ch 572. Lord Hanworth MR ([1929] 1 Ch 572), after citing the language of Russell J, in Re Hummeltenberg follows Re Wedgewood in quoting the words of Fitzgibbon LJ, in Re Cranston ([1898] 1 IR 448):
'Any gift which proceeds from a philanthropic or benevolent motive, and which is intended to benefit an appreciably important class of our fellow creatures (including, under decided cases, animals) and which will confer the supposed benefit without contravening law or morals will be "charitable."'
He adopts the views of Kennedy and Swinfen-Eady LJJ in the former case. The statement of Fitzgibbon LJ undoubtedly requires qualification in that it appears to make the intention of the donor the deciding factor and fails to point out that it is the stimulation of humane and generous sentiments in man and not the protection of animals per se which is important but this fact does not affect the view adopted by Lord Hanworth MR. Russell LJ however ([1929] 1 Ch 582), contemplates the possibility of anti-vivisection societies being removed from the class of charities in the light, as he says, of later knowledge in regard to the benefits accruing to mankind from vivisection. In answer to this suggestion it is immaterial to consider the evidence which Chitty J had before him in Re Foveaux , since the principle which he adopts is not that he is constrained by the evidence to hold the society charitable when he came to weigh the advantages of vivisection against the benefits to be obtained by a crusade against it. Russell LJ on the contrary, appears to take the view that the case for and against the benefits to be conferred is to be decided by some tribunal which shall determine whether the humane and generous sentiments exhibited in a desire to save animals from suffering may not be outweighed by the benefits conferred by inflicting it.
I find it difficult to accept the view that, once an object has been held to be included in the class of charities, it is then for the court to hear the evidence of witnesses on the one said and on the other as to whether it is in fact beneficial. I can imagine the severest contest between two sets of witnesses in the case of a gift for a religious purpose, the one saying that it is most beneficial and the other that it is very harmful. Is the tribunal to make up its mind between these two views whether on balance the gift is beneficial to the community or not? Yet if the argument be that the tribunal is to make up its mind on the evidence called before it, I cannot see where it can stop short of determining the matter on the ordinary principle upon which courts act in deciding upon a conflict of evidence, nor can I see any method of determining what preponderance of weight is to incline the scale sufficiently to one side or the other. This view is, I think, in accordance with the opinion of Sir John Romilly MR in Thornton v Howe (the Joanna Southcote case) when he says (inter alia) (31 Beav 20):
'... if the tendency were not immoral and although this court might consider the opinions sought to e propagated, foolish or even devoid of foundation, it would not, on that account ... take it out of the class of legacies which are included in the general terms charitable bequests.'
Undoubtedly the object must not be a mere fad or contrary to public policy, but no argument against the claim of the society was presented to your Lordships on either of these points, and fads can be dealt with by the method suggested by Kennedy LJ in Re Wedgewood .
In my view, the object of this society is the protection of animals from the sufferings believed to be involved in vivisection; that object is, in accordance with the decisions in what may be called the animal cases, charitable and does not cease to be charitable, in spite of the finding of the commissioners that its success would be gravely injurious to the public benefit. For these reasons, which are substantially those expressed by Lord Greene MR as well as because I do not think the objects of the society are political in the sense which would prevent them being charitable, I should allow the appeal.