National Anti-vivisection Society v Inland Revenue Commissioners
[1948] A.C. 31(Judgment by: Viscount Simon (including background))
Between: National Anti-vivisection Society - Appellant
And: Inland Revenue Commissioners - Respondents
Judges:
Viscount SimonLord Wright
Lord Porter
Lord Simonds
Lord Normand
Subject References:
CHARITY
REVENUE
INCOME TAX
EXEMPTION OF CHARITIES
Body 'established for charitable purposes only'
Abolition of vivisection
Legislative References:
Income Tax Act, 1918 (8 & 9 Geo. 5, c. 40) - s. 37, sub-s. 1 (b)
Judgment date: 2 July 1947
Judgment by:
Viscount Simon (including background)
A society having as its object the total suppression of vivisection is not "a body of persons.... established for charitable purposes only," within s. 37, sub-s. 1 (b), of the Income Tax Act, 1918, so as to be exempt from income tax
- (a)
- because any assumed public benefit in the advancement of morals would be far outweighed by the detriment to medical science and research and consequently to public health, and
- (b)
- because a main object of the society was political in the promotion of legislation.
So held by Viscount Simon, Lord Wright, Lord Simonds and Lord Normand, Lord Porter dissenting.
In re Foveaux [1895] 2 CH. 501 overruled.
Decision of the Court of Appeal (sub nom. Inland Revenue Commissioners v. National Anti-Vivisection Society) [1946] K.B. 185 affirmed.
APPEAL from the Court of Appeal. (MacKinnon and Tucker L.JJ., Lord Greene M.R. dissenting).
The society claimed exemption from income tax on investment income aggregating 2,875l. 15s. 7d. for the year ended April 5, 1943, on the ground that they were a body of persons established for charitable purposes only. The trust purposes were to be found in resolutions passed by a general meeting of the society held on July 31, 1897, and by the council on February 9, 1898. These were set out in the book of rules.
The commissioners for the special purposes of the Income Tax Acts gave their decision on December 29, 1943, in the following terms:
"In this case the society claim exemption from income tax under s. 37 of the Income Tax Act, 1918, on the ground that it is a body of persons established for charitable purposes only. The object of the society, as set out in its book of rules is stated to be'to awaken the conscience of mankind to the iniquity of torturing animals for any purpose whatever; to draw public attention to the impossibility of any adequate protection from torture being afforded to animals under the present law; and so to lead the people of this country to call upon Parliament totally to suppress the practice of vivisection.'
An explanatory resolution was passed by the council of the society on February 9, 1898, in the following terms:'The council affirm that, while the demand for the total abolition of vivisection will ever remain the object of the National Anti-Vivisection Society the society is not thereby precluded from making efforts in Parliament for lesser measures having for their object the saving of animals from scientific torture.'
The quotations set out above are taken from the book of rules of the society as reprinted in 1938. We are satisfied that the main object of the society is the total abolition of vivisection including in that term all experiments on living animals whether calculated to inflict pain or not and (for that purpose) the repeal of the Cruelty to Animals Act, 1876, and the substitution of a new enactment prohibiting vivisection altogether.
Dr. Fielding-Ould in his evidence before us suggested that there were some experiments on living animals to which the society did not object and that the society was only opposed to such experiments as caused pain and suffering to the animals, but we find it difficult to reconcile this evidence with the statements contained in the literature produced by the society, or indeed with the speeches of Dr. Fielding-Ould, as reported in 'The Animals' Defender' a paper of which he is the editor. We are satisfied that the members of the society are actuated by an intense love of animals, and that the work of the society is to a large extent directed towards the prevention of cruelty to animals. Part of its propaganda literature is directed towards inculcating a love of animals in the young. A number of very distinguished men were called as witnesses by the Crown with the object of proving the great benefits which had accrued to the public by reason of the medical and scientific knowledge which had been obtained through experiments on living animals. We think it has been proved conclusively that:
- (A)
- a large amount of present-day medical and scientific knowledge is due to experiments on living animals;
- (B)
- many valuable cures for and preventatives of disease have been discovered and perfected by means of experiments on living animals and much suffering both to human beings and to animals has been either prevented or alleviated thereby.
We are satisfied that if experiments on living animals were to be forbidden (i.e., if vivisection were abolished) a very serious obstacle would be placed in the way of obtaining further medical and scientific knowledge calculated to be of benefit to the public. We were very impressed by the evidence of Major-General Poole, Director of Pathology at the War Office, as to the great value of experiments on living animals in connexion with the successful carrying on of the present war by the maintenance of the health of the troops and the avoidance or minimizing of many diseases to which soldiers in the field are particularly liable.
There was no express evidence before us that any public benefit in the direction of the advancement of morals and education amongst men (or in any other direction) would or might result from the society's efforts to abolish vivisection, but if it must be assumed that some such benefit would or might so result, and if we conceived it to be our function to determine the case on the footing of weighing against that assumed benefit the evidence given before us, and of forming a conclusion whether, on balance, the object of the society was for the public benefit, we should hold, on that evidence, that any assumed public benefit in the direction of the advancement of morals and education was 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, was gravely injurious thereto, with the result that the society could not be regarded as a charity.
But, upon the authorities, we regard ourselves as precluded from so holding. In 1895 the society was held to be a charity within the legal definition of the word 'charity' (see In re Foveaux). [F1] Certain passages in the judgment of Chitty J. have been commented upon in In re Hummeltenberg, [F2] and in the case of In re Grove-Grady [F3] Russell L.J. stated as follows:'For instance, anti-vivisection societies, which were held to be charities by Chitty J. in In re Foveaux, and were described by him as near the border line, might possibly in the light of later knowledge in regard to the benefits accruing to mankind from vivisection be held not to be charities.'
In re Foveaux has not been overruled and it was certainly approved by the Court of Appeal in In re Wedgwood [F4] (see especially the judgment of Swinfen Eady L.J.). In these circumstances we have come to the conclusion that so far as we are concerned we are bound by the authorities to hold that the society is a body of persons established for charitable purposes only and entitled to exemption from income tax under s. 37 of the Income Tax Act, 1918. It remains for us to deal with the Crown's argument that as the alteration of the law by means of legislation was a main purpose of the society its claim to be a charity must fail. In support of this argument the Crown relied upon the case of Inland Revenue Commissioners v. Temperance Council of the Christian Churches of England and Wales. [F5]
We agree that the alteration of the law by means of legislation is a main purpose of the society but the repeal of the Act of Parliament (i.e., 39 & 40 Vic., c. 77) was undoubtedly part of the society's object in 1895 when In re Foveaux was decided and Chitty J. refers to this in his judgment. It would seem to follow that Chitty J. considered legislation only came in in a subsidiary way (see Rowlatt J.).
We therefore feel bound to reject the argument and allow the society's claim."
From this decision the Crown appealed to Macnaghten J., who reversed it, holding that the society was not a body of persons established for charitable purposes only. His judgment was upheld by the Court of Appeal (MacKinnon and Tucker L.JJ., Lord Greene M.R. dissenting). The society appealed to the House of Lords.
Grant K.C., Sir Valentine Holmes K.C. and Senter for the society.
The society is a body of persons established for charitable purposes only and its income is applicable to and is applied to charitable purposes only. In re Foveaux was rightly decided. It applies to the present case and ought to be followed. There the judge rightly held that the society's purpose was productive of moral benefit to the community. Trusts for the benefit and protection of animals are beneficial to the community because kindness to them produces moral benefits as tending to promote feelings of humanity and thus to elevate the human race. Thus humanity benefits from whatever benefits domestic or non-noxious animals.
The Crown suggests that the material or physical benefits of modern research on balance outweigh these moral benefits but the court cannot go into such a question of comparison of quantum of benefit. It cannot weigh the moral benefits resulting from the society's purpose against material benefits derived from vivisection, since any conclusion so reached must be merely the personal opinion of the judge as an individual and cannot be a judicial opinion based on evidence. This is a moral question and the court cannot weigh one moral benefit against another or examine a conflict between one ethical outlook and another. [They referred to Dr. Hastings Rashdall's The Theory of Good and Evil, vol. II, p. 441.]
In this conflict the Crown begs the question by answering the moral question in favour of its own contention. Thus, once it is established that a gift is for the advancement of religion or of education or for the relief of poverty, it falls within one of the heads of classification of charitable purposes and cannot be held not to be charitable on the ground that it will or may produce consequential disadvantages or evils: see Income Tax Commissioners v. Pemsel. In the case of a religious object adherents of other religions cannot come to the court and contend that that religion does more harm than good, for the region of relative ethics is one into which the court cannot enter. The same principle applies to purposes (of which the purpose of the society is one) which produce a benefit to the community and therefore, apart from any consequential disadvantages or evils which they may produce, are charitable.
The purpose of the society does not cease to be beneficial to the community even if the full achievement of that purpose would deprive mankind of certain consequential benefits. Even proof that material benefits were derived from vivisection and that physical evils would result if it were stopped does not destroy or displace the moral benefit to the community which results from the society's purpose.
Different people are aiming at the public good in different ways and it may be that the Medical Research Council which admits vivisection is also a charity. One may hold an object to be charitable although one does not approve of it oneself. In In re Foveaux the judge, though he knew of the Report of the Royal Commission on Vivisection in 1876 (Cmd. 1397) stood neutral. That decision should stand. The observations on it by Russell L.J. in In re Grove-Grady were obiter dicta and should not be followed. Neither in that case nor in any other relied on by the respondents was there any question of weighing the benefits to the community of an alleged charity against supposed consequential harm. The decision in that case was that the trust was not for the benefit of animals and that no benefit to the community could flow from it. In re Hummeltenberg is distinguishable and does not touch In re Foveaux. In re Cranston supports the society's contentions. [They referred to In re Wedgwood; London University v. Yarrow; In re Douglas; Marsh v. Means; Armstrong v. Reeves and Inland Revenue Commissioners v. Yorkshire Agricultural Society.] Further, the fact that an Act of Parliament has already dealt with the matter does not render the objects of the society the less charitable: see Protection of Animals Act, 1911. So far as the society is seeking to alter the law its object is to secure the abolition of vivisection; the ultimate object is charitable and the incidental political means to be adopted do not vitiate it. [They referred to Inland Revenue Commissioners v. Temperance Council of the Christian Churches of England and Wales; De Themmines v. De Bonneval and In re Hood.]
Sir Hartley Shawcross A.-G., Jenkins K.C., J. H. Stamp and R. Hills for the Crown. The society is not established for charitable purposes only. The object of the society being the total prohibition of vivisection which at present is authorized and controlled by the Cruelty to Animals Act, 1876, the repeal of that Act and the replacement of it by another statute is a political object such as cannot in law constitute a charitable object. The object of the society is legislation; the result would be the abolition of vivisection; the motive is the prevention of cruelty to animals. Controversial matters pertaining to government are excluded from the scope of charities. Save where the objects include the passing of an enabling Act ancillary to the achievement of non-controversial purposes, no trust aiming at a change of the law can be charitable; in the present case the political object is not ancillary.
If it were otherwise, party funds would be charitable as would a trust to protect people from starvation by means of protective tariffs. The difference between voluntary persuasion and coercion is crucial. The promotion of legislation involving compulsion as regards a particular course of conduct at the time not obligatory or prohibition of something at the time lawful would be political and could never be a charitable object. If the objects of a society are both conversion and legislation then, as the funds could be employed on either purpose, there would be no charitable trust, unless possibly the legislation were quite ancillary. Thus, theoretically, a society to persuade persons conducting experiments not to practise vivisection might be charitable but not a society aiming at legislation in the matter. A trust to abolish divorce, though that is a religious object, would be acutely controversial and would require legislation to achieve its object and so could not be charitable. Again, while a trust to build churches would be charitable, a trust to promote legislation to have churches built and to compel persons to go to them would not be so. A trust to redeem slaves would be charitable but not to promote legislation for the abolition of slavery. A trust to promote abstinence from intoxicating liquor would be charitable but not one to promote prohibition by legislation. If the objects of a society included both conversion and legislation, then, since the funds could be expended on either purpose, there would be no charitable trust. [They referred to Bowman v. Secular Society, Ld.; In re Tetley; Attorney-General v. National Provincial and Union Bank of England; Blair v. Duncan; In re Macduff; Voluntary Workers' Role Trustees v. Inland Revenue Commissioners and Bonar Laze Memorial Trust v. Inland Revenue Commissioners.]
Further, on the facts, the aims of the society are not for the benefit of the public but are inimical to it. To be charitable a trust must be for the benefit of the community. It is because it is for the public benefit that a charitable trust may be a perpetuity which a private trust may not. A trust which, on the evidence, is injurious to the community, cannot be charitable. It cannot be for the public benefit to expose a great number of human beings and animals to grievous suffering and in many cases to painful and premature death by exempting a smaller number of animals from the humanely regulated and limited suffering associated with the practice of vivisection. The object of the society is the total abolition of vivisection, not the prevention of cruelty to animals, which is only the motive. It is no more charitable than a trust to prohibit the wearing of leather shoes with the motive of preventing cruelty in killing and skinning animals. Public benefit is essential to a charitable trust, not necessarily public purposes for it is not all public purposes that are charitable. Not all education would be charitable, e.g., the education of Fascists. Not all religious trusts would be charitable, e.g., trusts for devil worship and the Black Mass. A trust to provide a bounty for any young women who had at least three illegitimate children or a trust far the relief of persons who were poor because they would not work or impoverished as a result of having made themselves liable to fines would not be charitable (see Thrupp v. Collett).
In all such cases the court would have to look at the matter in the light of public policy. The whole terms and effect of the particular trust have to be considered and if its object involves consequences which, when duly weighed by the appropriate tribunal are found injurious tn the community, the trust cannot be charitable. The standard is a fluctuating one. For example, at one time a trust for the suppression of witchcraft might have been held charitable on religious grounds.
It is not asserted that majorities are always right but minorities are not to be accorded special privileges which the majority may not hold to be for the public benefit. Persons may hold or teach unorthodox views but they are not to have special privileges for that purpose at the public expense. The court must look at all the considerations material and moral and reach a conclusion on the whole matter. The proposition is simple, though its application may be hard. The function of the court is to determine on the evidence what is the common understanding on the matter under the particular ethical code accepted in this country: see In re Cranston and Ford v. Wiley. There is no question of balancing moral against material considerations or different moral considerations against each other, since there is no authority for dividing the effects on the public into watertight compartments moral and material. For example, it would not be open to a donor or to the court to bestow the cachet of charitable validity on a trust by saying that material welfare will be enhanced and therefore the moral result cannot counterbalance it, as in the trusts already instanced which would promote laziness or immorality. It is not possible to separate moral from material results giving preference to one rather than the other.
The moral problem is: If a man can be saved by an experiment inflicting pain on an animal, should you save the man or spare the animal?
The answer will depend on the particular ethical code applied and the circumstances in which the pain is inflicted, since the infliction of pain may be justified and is hot necessarily cruel or evil. The christian ethic subordinates animals to the use of man, subject to a condemnation of cruelty. The real antithesis is between sentimentality and morality. On moral standards the question should be answered by saving the man. The moral rectitude is certainly not all on the side of the society, for the work of medical research is just as altruistic as anti-vivisection. The courts are constantly called on to judge moral questions. The matter is to be tested by them on the evidence available at the particular time and judged by current ethical standards. In re Grove-Grady was rightly decided. A trust for the benefit of animals is only charitable if benefit to the community necessarily results. The special commissioners were not bound by In re Foveaux and should have acted on their own view that the object of the society was not beneficial to the community. If the judge in that case had had before him evidence comparable to that now produced that the abolition of vivisection would be gravely detrimental to the community, he could not have held the trust charitable. [They also referred to Attorney-General v. Whorwood.]
Grant K.C. in reply. The real purpose of this society is not political; it is not to alter the law but to stop a particular practice by whatever means. In re Tetley; Blair v. Duncan and In re Macduff have nothing to do with this point on which there is no authority against the society. As to benefit to the community, the correctness of the decisions touching animal charities has not been challenged by the Crown, save in the case of In re Foveaux. The real problem is whether the good to the human race resulting from vivisection outweighs the evil of the practice. It is a moral problem which it is not for the court to solve. If rational persons can hold opposite views this must be a charity since it has been held in favour of the society in In re Foveaux and In re Wedgwood that the purpose of seeking to stop vivisection does produce a moral benefit. [He also referred to Thornton v. Howe and Income Tax Commissioners v. Pemsel.]
THE HOUSE took time for consideration.
July 2. VISCOUNT SIMON. My Lords, in this very important and most difficult case, going as it does to the foundations of the conception of one kind of charitable trust, I have read and reread the opinion which has been prepared by my noble and learned friend Lord Simonds. Notwithstanding views to a different effect which are to be found in the minority judgment of the Master of the Rolls in the Court of Appeal, and in another opinion about to be pronounced in this House, I cannot escape from the course of argument contained in Lord Simonds' opinion, or from the conclusion at which he arrives. I therefore move that this appeal be dismissed with costs.