National Anti-Vivisection Society v Inland Revenue Commissioners

[1947] 2 All ER 217

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(Judgment by: Lord Wright)

National Anti-Vivisection Society
v Inland Revenue Commissioners

Court:

Judges: Viscount Simon

Lord WrightLord Porter
Lord Simonds
Lord Normand

Hearing date: 25, 27, 28 FEBRUARY, 3, 4 MARCH, 2 JULY 1947
Judgment date: 2 July 1947

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Judgment by:
Lord Wright

My Lords, the issue in this case is whether the appellant society is entitled to exemption from income tax under s 37 of the Income Tax Act, 1918, on the ground that it is a body established for charitable purposes only. The year of charge is the year ending 5 April 1943, and the subject is the society's invested income aggregating £2,876 15s 7d. The Special Commissioners before whom the matter came felt bound to allow the claim on the authority of Re Foveaux , in which Chitty J had held that the society was a charity, though they would, apart from authority, have held that on balance the object of the society, so far from being for the public benefit, was gravely injurious thereto, and, therefore, that the society could not be regarded as a charity. They also, on the ground of the same authority, rejected the argument that the society could not claim to be a charity because the alteration of the law by means of legislation was a main object of the society. That decision was reversed by MacNaghten J and his decision was affirmed on appeal by the Court of Appeal, by a majority, Lord Greene MR dissenting.

The commissioners heard a great deal of evidence and their material conclusions in the Case they stated were:

'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 ... We think it has been conclusively proved 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 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 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.'

They were also prepared, if it was to be assumed that any public benefit in the direction of the advancement of morals and education amongst men would or might result from the society's efforts to abolish vivisection, of which they had no express evidence, and if their function was to determine the case on the footing of weighing an assumed public benefit in the direction of the advancement of morals amongst men, which could, or might, result from the society's efforts to abolish vivisection, to hold, on the evidence, that any such assumed public benefit was far outweighed by the detriment to medical science and research, and, consequently, to the public health, that would result if the society succeeded in 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.

I think the first thing to examine is whether Re Foveaux was rightly decided and whether the commissioners were justified in regarding themselves as bound by the authority. Before examining Re Foveaux it will be convenient to bear in mind, what is now generally accepted, that the decision that a gift or fund is charitable is a matter for the decision of the court on all the materials before it. "Charitable" in this context has reference to charitable in the legal sense. Charity indeed is here a word of art of precise and technical meaning. From very early times the decision was the function of the court. Thus, rules grew around the very sketchy list in the Statute of Elizabeth (43 Eliz, c 4). Judicial precedents were established. An early attempt to simplify the problem by a classification under main heads was the summary under four heads submitted by Sir Samuel Romilly (then MR Romilly) arguing in Morice v Bishop of Durham (10 Ves 532). These heads were, first, relief of the indigent, second, advancement of learning, third, the advancement of religion, fourth, which is the most difficult, the advancement of objects of general public utility. This classification substantially was adopted by Lord MacNaghten about 85 years later in his famous list of charitable purposes in Pemsel's case ( [1891] AC 583 ), which is too familiar to call for quotation here. Lord MacNaghten had emphasised that he was discussing the legal meaning of charity; like Sir Samuel Romilly he remarked on the distinction between the popular and the legal meaning of the word. It is not necessary at this time of day, to observe that not every object which is beneficial to the community can be regarded as charitable. The legal significance is narrower than the popular. This was fully and explicitly held by this House in A-G v National Provinical Bank , which followed Re Macaduff , and was discussed more recently, but more in relation to the construction of general words than to specific instances, in Chichester Diocesan Fund v Simpson . Even if the object were in some sense beneficial to the community, it would still be necessary to discover that it fell within the spirit and intendment of the instances given in the Statute of Elizabeth. Healthy and manly sports are certainly in fact beneficial to the public, but apart from special concomitants are not generally entitled to qualify as charitable objects. On the other hand, societies or institutes for scientific research would generally be charities, as being for the benefit of mankind under the fourth head, or, alternatively, as falling within the extended significance given to education or the advancement of learning which includes, in modern times, science. Even societies coming within the first three heads of Lord MacNaghten's classification would not be entitled to rank as legal charities if it was seen that their objects were not for the public benefit. Where a society has a religious object it may fail to satisfy the test if it is unlawful, and the test may vary from generation to generation as the law successively grows more tolerant. Lord Parker in Bowman v Secular Society ( [1917] AC 448 , seq ), gives a long list illustrating this principle. It cannot be for the public benefit to favour trusts for objects contrary to the law. Again eleemosynary trusts may, as economic ideas and conditions and ideas of social service change, cease to be regarded as being for the benefit of the community, and trusts for the advancement of learning or education may fail to secure a place as charities, if it is seen that the learning or education is not of public value. The test of benefit to the community goes through the whole of Lord MacNaghten's classification, though, as regards the first three heads, it may be prima facie assumed unless the contrary appears.

Re Foveaux was decided in 1895 by Chitty J The headnote ([1895] 2 Ch 501), is simply:

'Societies for the suppression and abolition of vivisection are charities within the legal definition of the term "charity."'

The particular societies in question were either the predecessors of the present society or were substantially identical for all relevant purposes. The object as stated by Chitty J ( ibid , 503) was the total suppression of the practice of vivisection. At the time when the decision was given an Act entitled the Cruelty to Animals Act, 1876, was in force. That Act made it unlawful and an offence to perform on a living animal any experiment calculated to give pain except subject to the restrictions imposed by the Act. One provision was that the particular experiment was to be performed with a view to the advancement by new discovery of physiological knowledge or of knowledge which will be useful for saving or prolonging life or alleviating suffering. It was generally required by the Act that the animal should be under a sufficient anaesthetic save in special circumstances in which case a certificate was necessary under stringent conditions and experimenters were to hold a licence. This Act has remained in force since then. Its repeal is the main object of the present society. Chitty J ( ibid , 504) refers to the Act as being the subject of controversy between the supporters and opponents of the practice of vivisection. The former, he said, argue that the practice under carefully guarded provisions is justifiable because it tends to promote the welfare of the human race and even animals. The latter argue that the practice is really unjustifiable. The judge seemed disposed to regard the issue as depending on how the element of the improvement of morality was to be considered, but he had already accepted the position that the court does not enter into or pronounce any opinion on the merits of the controversy between the two sides. Though he knew of the report of the Royal Commission on Vivisection, the court, he said, "stands neutral" ( ibid , 503). Later in his judgment he said that the intention is to benefit the community: whether, if they achieved their object, the community would, in fact, be benefited is a question on which the court is not required to express an opinion ( ibid , 507). Whatever else is clear, it is, I think, clear that the question he is proposing involves the balancing of utilities. I cannot understand how the judge could avoid deciding the very question necessary for his decision, viz , whether the society satisfies the fourth head, as being beneficial to the community. That I think is the test he proposes. He questions if the infliction of pain is necessarily cruelty. It may be justifiable, he concedes, but that, he thinks, is a question of morals on which men's minds may differ ( ibid ). But he seems to conclude the matter by holding that the intention of the creator of the trust is to benefit the community. That he treats as decisive: he declines to determine whether the community would in fact be benefited.

This judgment has stood since it was delivered. Though it has not been reversed it has been severely criticised by a great authority, Lord Russell Of Killowen, though by way of dictum and not decision. There have also been other judicial pronouncements which may have to be considered. The earlier of the cases in which Russell J as he then was, adverted to this question was Re Hummeltenberg ; the matter in that judgment most material to the discussion of Chitty J's judgment is shortly expressed in the headnote ([1923] 1 Ch 237):

'The opinion of the donor of a gift or the creator of a trust that the gift or trust is for the public benefit does not make it so, the matter is one to be determined by the court on the evidence before it.'

Russell J at p 242, rejected the contention on the lines of the views expressed in Re Cranston , and by Chitty J in Re Foveaux . Russell J clearly defined his opinion at p 242:

'If a testator by stating or indicating his view that a trust is beneficial to the public can establish that fact beyond question, trusts might be established in perpetuity for the promotion of all kinds of fantastic (though not unlawful) objects, of which the training of poodles to dance might be a mild example. 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.'

I accept these observations as correctly stating the law. They were, in fact, adopted by the majority of the Court of Appeal in the next case I shall cite which is an "animal" case. It is Re Grove-Grady . It is sufficient here to record that the purpose of the society contemplated by the trust was the acquisition of land for the provision of refuges for the preservation of "all animals birds or other creatures not human." The principle of the decision was that there could not be a legal charitable trust unless its execution involved a benefit to the community. Hence, a trust for the benefit of animals would not merely on that ground be charitable. There must be a further element, in particular, that the discouragement of cruelty promotes humane sentiments in man towards the lower animals which involves moral benefit to the human community. Russell LJ as he then was, reiterated ([1929] 1 Ch 588) the proposition that:

'... the court must determine in each case whether the trusts are such that benefit to the community must necessarily result from their execution.'

He added significant words:

'The authorities have, in my opinion, reached the furthest admissible point of benevolence in construing, as charitable, gifts in favour of animals, and for myself, I am not prepared to go any further.'

The same warning had been uttered by Lord Sterndale MR in Re Tetley . He said ([1923] 1 Ch 266):

'I confess I find considerable difficulty in understanding the exact reason why a gift for the benefit of animals, and for the prevention of cruelty to animals generally, should be a good charitable gift, while a gift for philanthropic purposes, which, I take it, is for the benefit of mankind generally, should be bad as a charitable gift.'

Lord Sterndale MR ( ibid , 269) agreed with the principles stated by Russell J ( ibid , 261) which formed the basis of the decision of the Court of Appeal.

It is clear that Re Grove-Grady was not inconsistent with the general view in favour of preventing cruelty to animals. The trust in that case did not protect the weaker animals from the cruelty of the stronger and more savage, because the idea of the testatrix was to provide a sanctuary in which animals might be free from the danger of being shot or trapped or otherwise maltreated by human beings, though left at liberty to indulge their natural instincts of inherent cruelty against each other. Re Wedgewood was discussed in that case. The trust there was to apply the fund for the protection and benefit of animals. It was held to be valid on the ground that it was calculated to promote public morality by checking the innate tendency to cruelty. Much that was said in that case clearly went too far. The emphasis of the actual decision, however, was that the moral benefit to mankind consisted in promoting feelings of kindness towards animals and thus promoting feelings of humanity and morality generally; the limitation of the doctrine to animals useful to man which was prominent in the earlier of the animal cases, University of London v Yarrow , was lost sight of or at least had fallen into the background in view of the wider and less specific doctrine of moral improvement, which was held to satisfy the requirement of benefit to the community under the fourth head of Lord MacNaghten's classification. It was held to be present in Re Wedgewood , but absent in Re Grove-Grady , but in neither case was it ignored.

I do not intend to make a complete anthology of the "animal" cases, but I must refer shortly to the most important of the Irish cases on gifts for the benefit of animals, viz, Re Cranston , a decision of the Irish Court of Appeal. There the bequest was in favour of a vegetarian society, whose purpose was to stop the killing of animals for good which was condemned as being inconsistent with the rights of animals and calculated to produce demoralising effects on men. The validity of the gift was upheld by the majority of the Irish Court of Appeal, largely for reasons taken to be derived from Re Foveaux , but a powerful dissenting judgment was delivered by Holmes LJ ([1898] 1 IR 452). He was content, indeed, to distinguish Re Foveaux , but he demanded to know ( ibid , 457) if a belief by the promoters in the utility of their project to eliminate the use of animal food could make it a charity in any sense which the law attaches to that term. "If so," he said, "every object not actually immoral or illegal must be held a charity." He enforced his opinion by giving instances of matters which might be conceived to be beneficent agencies by a few idealists or cranks.

The result so far has been that it is necessary for your Lordships to decide whether Re Foveaux was rightly decided, or, perhaps more accurately, whether the commissioners were right in thinking that it governed the case before them. No doubt, Chitty J had, in the report of the Royal Commission of Vivisection, which was before him, amply sufficient evidence of the utility of vivisection and hence of the mischief of any project aimed at making it unlawful, but it is not clear how far he had appreciated the full force of the evidence. The evidence now produced of the enormous advances in science and research which has been accepted by the commissioners in their findings of fact on the utility of vivisection is indeed such as no fair-minded man could refuse full credence. It is conclusive to my mind; besides the findings are binding on your Lordships. Re Foveaux has been the subject of much discursive comment, but it has not been the subject of decision in this House until the present case. The fact that it has stood so long cannot bar this House from reversing it if your Lordships are satisfied that it is wrong. Bourne v Keane ( [1919] AC 815 ), is sufficient authority as to the general powers of the House, or, as I should say, its duty. One of the most important aspects of the judicial functions of this House is to harmonise or correct the decisions of the lower courts, even though, as Lord Birkenhead LC said at p 830, it would be "overruling decisions which have been treated as binding for generations."

In my opinion, Re Foveaux was wrongly decided and should now be reversed. Chitty J was wrong in taking the intention of the donor as a sufficient test that the gift was charitable. That is vital. He was wrong in holding that he could stand neutral and not decide, on the facts before him, the question whether the gift was for the public benefit. If he stood neutral, he could not decide in favour of one side and against the other side. He was inconsistent in holding that the gift was charitable while at the same time refusing to decide whether it was for the public benefit: unless he so decided in favour of the gift he could not decide that it was charitable. If he was not satisfied that the propaganda and expenditure for the suppression of vivisection were beneficial to the community, he could not hold that the activities of the society were charitable or that the society was entitled to exemption from income tax under s 37 of the Income Tax Act, 1918, or to the benefit of a perpetuity. He was also wrong in deciding that he could not weigh against each other the detriment inseparable from suppressing vivisection, on the one hand, and, on the other hand, the benefit to the community of higher moral standards said to be due to enhanced regard for the well-being of animals. There is not, so far as I can see, any difficulty in weighing the relative value of what it called the material benefits of vivisection against the moral benefit which is alleged or assumed as possibly following from the success of the society's project. In any case the position must be judged as a whole. It is arbitrary and unreal to attempt to dissect the problem into what is said to be direct and what is said to be merely consequential. The whole complex of resulting circumstances of whatever kind must be foreseen or imagined in order to estimate whether the change advocated would, or would not be, beneficial to the community. The commissioners have abstained from any but the vaguest finding on the possibility of moral benefit. They had no evidence, they said, on the point, but, at the highest, the assumed or alleged benefit is indirect and problematical. There is clearly no general consensus of opinion or understanding against the practice of vivisection which has been permitted by Parliament as regulated under the Act of 1876. That Act has stood all these years substantially without any serious attack. It seems that people's moral feelings are not weakened nor their objections to cruelty to animals reduced by the existence of the Act. If they think about it at all they think of the immense and incalculable benefits which have resulted from vivisection. If that involves some measure of pain at times to some animals, notwithstanding the Act, they feel that it is due to a regrettable necessity. Similarly, a man who has a beefsteak for dinner, if he thinks at all about the slaughter of the beast, reflects that that is inevitable in the present constitution of society. I do not question that a high degree of regard for animals is a good thing, but it must be a regulated regard. Cruelty, that is purposeless cruelty, whether through brutality or through a purpose to satisfy our pleasure or our pride, cannot be forgiven. It is, indeed, also a penal offence at law, but it is impossible to apply the word cruelty to the efforts of high-minded scientists who have devoted themselves to vivisection experiments for the purpose of alleviating human suffering. Harvey was only able to publish in 1628 his great work, De Motu Cordis , because he had been given deer from he Royal park for purposes of vivisection. Countless millions have benefited from that discovery. I do not minimise the sufferings of the unfortunate deer. The subject of vivisection is not a consenting party nor does it benefit, but I put against that the benefit to humanity. It has been argued that a court cannot weigh moral and material benefits against each other. This is not the place to accept or reject Bentham's pronouncement that "measure for measure pushpin is as good as poetry," or debate whether utilitarian or intuitionist ethics is the truer theory, but in ordinary life people often have to decide between a moral and a material benefit. However, I do not think that is a fair statement of the issue. The scientist who inflicts pain in the course of vivisection is fulfilling a moral duty to mankind which is higher in degree than the moralist or sentimentalist who thinks only of the animals. Nor do I agree that animals ought not to be sacrificed to man when necessary. A strictly regulated amount of pain to some hundreds of animals may save and avert incalculable suffering to innumerable millions of mankind. I cannot doubt what the moral choice should be. There is only one single issue. I have great sympathy with much that Lord Greene MR has said in his powerful dissenting judgment. I have a great love for animals and some familiarity with certain classes. I am sorry that rabbits, a weak and an innocent but monstrously destructive race, should have to be destroyed in great numbers as they were and are being, to save our people from qualified starvation. I agree with the Master Of The Rolls that rats, beetles and other pests, if they have to be destroyed, should be destroyed with as little cruelty as possible, but destroyed they must be. The lives of animals at the best are precarious. Millions have perished in the last frost. That is a regrettable necessity, but, however it is looked at, the life and happiness of human beings must be preferred to that of animals. Mankind, of whatever race or breed, is on a higher plane and a different level from even the highest of the animals who are our friends, helpers and companions. No one faced with the decision to choose between saving a man or an animal could hesitate to save the man.

I have turned for a while to considerations of fact because that is inevitable in balancing conflicting value. To my mind, the scale of the anti-vivisectionist mounts up and kicks the beam. A statesman is constantly weighing conflicting moral and material utilities. I must add that I have great doubt, even apart from the final argument which I shall advert to in a moment, that the object of abolishing vivisection can on any view be regarded as being in law a public charitable object. It is not analogous to any of the objects enumerated in the preamble to the Statute of Elizabeth. Its only claim to be admitted must rest on the fourth head. To get into that class it must be established that it is beneficial to the community. What it seems to do, however, is to destroy a source of enormous blessings to mankind. That is a positive and calamitous detriment of appalling magnitude. Nothing is offered by way of counterweight but a vague and problematical moral elevation. The law may well say that, quite apart from any question of balancing values, an assumed prospect, or possibility of gain so vague, intangible and remote cannot justly be treated as a benefit to humanity, and that the society cannot get into the class of charities at all unless it can establish that benefit. If it fails, it can still continue to carry on such lawful purposes as the members desire and its funds, exiguous as they are, permit. Apart from the "animal" cases I cannot find any precedent for such an object being held charitable. On the other hand, the vivisectionists, who are attacked, can fairly claim that their purpose is charitable and would generally be so recognised either under the fourth head of the accepted classification or under the head of advancement of learning. I think that the whole tendency of the concept of charity in a legal sense under the fourth head is towards tangible and objective benefits, and at least that approval by the common understanding of, englightened opinion for the time being is necessary before an intangible benefit can be taken to constitute a sufficient benefit to the community to justify admission of the object into the fourth class. By this test the claim of the society would fail.

But there is another and essentially different ground on which, in my opinion, it must fail. That is because its object is to secure legislation to give legal effect to it. It is, in my opinion, a political purpose within the meaning of Lord Parker's pronouncement in Bowman v Secular Society Ltd ( [1917] AC 442 ). Lord Parker was discussing in a different connection the same question of the true criterion for deciding if charitable gifts are for the benefit of the public in the legal sense. He was there referring to the objects enumerated in the memorandum of association of the Secular Society, Ltd. He said:

'Now if your Lordships will refer for a moment to the society's memorandum of association you will find that none of its objects, except possibly the first, are charitable. The abolition of religious tests, the disestablishment of the Church, the secularisation of education, the alteration of the law touching religion or marriage, or the observation of the Sabbath, are purely political objects. Equity has always refused to recognise such objects as charitable. It is true that a gift to an association formed for their attainment may, if the association be unincorporated, be upheld as an absolute gift to its members, or, if the association be incorporated, as an absolute gift to the corporate body; but a trust for the attainment of political objects has always been held invalid, not because it is illegal, for everyone is at liberty to advocate or promote by any lawful means a change in the law, but because the court has no means of judging whether a proposed change in the law will or will not be for the public benefit, and therefore cannot say that a gift to secure the change is a charitable gift.'

While I was preparing this part of my opinion Lord Simonds was kind enough to draw to my attention the passage which in due course your Lordships will hear quoted by him from a work of authority, Tyssen on Charitable Bequests.( vide p 232, 233 post) It is, I think, a very important contribution to this question. It appears to me to go to explain and justify Lord Parker's opinion. I refer especially to Tyssen's words: "the law could not stultify itself by holding it was for the public benefit that the law itself should be changed" and again: "Each court ... must decide on the principle that the law is right as it stands." I am reminded of the words of a great common law judge who warned the courts against usurping the functions of the legislature. I regard the statements of Lord Parker and Tyssen not as inconsistent, but as complementary.

In my opinion, the Crown's objection under this head is well founded. The commissioners held 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 ., the Cruelty to Animals Act, 1876], was undoubtedly part of the society's object in 1895.'

They, accordingly, felt bound to follow Chitty J on this point as they had done on the first point. Your Lordships are not bound by the judgment of Chitty J and I prefer the reasoning on the point of Rowlatt J in Inland Revenue Comrs v Temperance Council of Christian Churches of England and Wales . Rowlatt J held in respect of the respondent in that appeal that the purpose was, not charitable, but political within the meaning of the principle stated by Lord Parker. He held that legislation occupied the greater part of the field in the description of the objects of the respondent. He held that any purpose of influencing legislation is a political purpose in this connection on the clear authorities, that the respondent's direct purpose was to effect changes in the law, and that was not a charitable purpose. He distinguished what he called the anti-vivisection cases ( ie , the cases which I have been discussing) on the ground that in them the alteration of the law was subsidiary and not a main purpose. While I agree with the decision of Rowlatt J, I venture to think that he fell into error in distinguishing, as he did, the anti-vivisection cases, or, at least, that his assumed ground of distinction could not be applied in the present case.

The commissioners here held categorically, as already stated, that the repeal of the Cruelty to Animals Act, 1876, and the substitution of a new enactment prohibiting vivisection altogether was the main object of the society. I, accordingly, treat the judgment of Rowlatt J which I have just cited, as a precise authority from that very eminent judge to support my conclusion that, on this special ground, in addition to the others I have mentioned, the objects of the society were not charitable. Rowlatt J's judgment was distinguished, but not disapproved, by Lawrence LJ in Re Hood . He said ([1931] 1 Ch 252):

'... in that case the gift was not for the promotion of temperance generally, but was for the promotion of temperance mainly by political means ... '

These words, mutatis mutandis , can be applied aptly to the present case. The illustrations given by Lord Parker in the passage quoted above show clearly what meaning he attached to the word "political." It was not limited to party political measures, but would cover activities directed to influence the legislature to change the law in order to promote or effect the views advocated by the society. Such a change would be in the same category as the instances given by Lord Parker of what he regarded as political objects and would exclude the society from the category of charities. Its proposed object is of a public and very controversial character. The present capacity of the society is not great, but the possibilities of political agitation would be immensely increased if a few millionaires were to endow it with great financial resources. This conclusion does not in any way extend or affect the freedom of the society to promote their cause, which is extend to promote their cause, which is lawful enough, by any legitimate or proper means, but it does prevent them from claiming the benefit of being immune from income tax, which would amount to receiving a subsidy from the State to that extent. Lord Parker was, I think, merely enunciating a specific limitation on the extent of the legal definition of charitable trusts. There are in this case stronger grounds than Lord Parker contemplated in his broader statement of principle for the court declining to say that a gift to secure the change is a charitable gift. I should dismiss the appeal.