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Original Printed Version (PDF)


[CHANCERY DIVISION]


In re SOUTH PLACE ETHICAL SOCIETY

BARRALET AND OTHERS v. ATTORNEY-GENERAL AND OTHERS

[1978 S. No. 1769]


1980 June 3, 4, 5, 6, 9, 10, 11

Dillon J.


Charity - Charitable purposes - Ethical society - Society beginning as congregation of Unitarian chapel - Subsequent change of name and objects - Study and dissemination of ethical principles and cultivation of rational religious sentiment - Whether objects for advancement of religion or otherwise charitable - Imperfect trust provisions - Whether provisions validated - Charitable Trusts (Validation) Act 1954 (2 & 3 Eliz. 2, c. 58), s. 1


The society began in 1824 as the congregation of a Unitarian chapel. By a deed dated February 1, 1825, its chapel was to be held by trustees on trust to permit it to be used "for the public worship of one God even the Father and for instruction in the Christian religion," as professed by the society. The deed contained a power to vary or rescind any of its provisions i in relation to the mode of electing or removing trustees, ministers or other officers or of charging or disposing of all or any part of the ... trust estate or of convening and holding public meetings for the purposes of the ... trust or otherwise howsoever." In the event of dissolution of the society so that the public worship of God was discontinued for the space of two years successively, the trustees were required, in a final proviso, to convey the trust estate "unto such person or persons in such manner or for such purposes either religious or civil" as the specified number of trustees should direct. The society abandoned prayer in 1869, and in 1887 changed its name to the South Place Ethical Society. Following legal advice to the effect that the deed of 1825 enabled the trustees to alter the trust's charitable purposes, the trustees executed two deeds of variation, one in 1907 and one in 1930, as a result of which the society's objects became "the study and dissemination of ethical principles and the cultivation of a rational religious sentiment." The chapel was sold in 1927 and a site was bought on which the well-known "Conway Hall" was erected, at which the society's activities had been carried on since 1930. The members of the society were agnostics but not atheists. The society held meetings on Sundays open to the public, at which lectures were delivered, followed by discussion. It also published a monthly magazine, gave concerts of high quality, and indulged in certain social activities.

On the trustees' summons for declarations, inter alia, as to whether the society's present objects were for the advancement of religion or otherwise charitable and whether it was the trustees' duty or the trustees were able to convey the trust assets cy-prs or otherwise: -

Held, (1) that the society's present objects, while possessing the necessary element of benefit to the public in that they were not devoted merely to self-improvement of the society's members, were not for the advancement of religion, but that they were for the advancement of education or, by analogy with decided cases, were charitable as being for the public benefit (post, pp. 1570B-D, 1572B-D, 1573H, 1577C-D).




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In re Scowcroft [1898] 2 Ch. 638; In re Hood [1931] 1 Ch. 240, C.A. and In re Price [1943] Ch. 422, applied.

Income Tax Special Purposes Commissioners v. Pemsel [1891] A.C. 531, H.L.(E.), Williams' Trustees v. Inland Revenue Commissioners [1947] A.C. 447, H.L.(E.); United Grand Lodge of Ancient Free and Accepted Masons of England v. Holborn Borough Council [1957] 1 W.L.R. 1080, D.C.; United States v. Seeger (1965) 38 U.S. 163; Reg. v. Registrar General, Ex parte Segerdal [1970] 2 Q.B. 697, C.A. and Incorporated Council of Law Reporting for England and Wales v. Attorney-General [1972] Ch. 73, C.A. considered.

(2) That the power of variation contained in the deed of 1825, on its true construction, extended only to matters of machinery and administration, and that the deeds of 1907 and 1930 were accordingly void and of no effect; but that the original society of Protestant dissenters having ceased to exist, the provisions of the final proviso to the deed of 1825 took effect, and that those provisions, despite their initial invalidity, constituted an imperfect trust provision, which had been validated by the Charitable Trusts (Validation) Act 1954, and therefore the trustees were bound to convey the estate "to such person or persons in such manner and for such purposes, religious or civil" being charitable as the requisite number of trustees should direct (post, pp. 1578D-F, 1579F-H).


The following cases are referred to in the judgment:


Attorney-General v. Pearson (1817) 3 Mer. 353.

Bowman v. Secular Society Ltd. [1917] A.C. 406, H.L.(E.).

Brisbane City Council v. Attorney-General for Queensland [1979] A.C. 411; [1978] 3 W.L.R. 299; [1978] 3 All E.R. 30, P.C.

Friends' Free School, In re [1909] 2 Ch. 675.

Hood, In re [1931] 1 Ch. 240, C.A.

Hopkins' Will Trusts, In re [1965] Ch. 669; [1964] 3 W.L.R. 840; [1964] 3 All E.R. 46.

Income Tax Special Purposes Commissioners v. Pemsel [1891] A.C. 531, H.L.(E.).

Incorporated Council of Law Reporting for England and Wales v. Attorney-General [1972] Ch. 73; [1971] 3 W.L.R. 853; [1971] 3 All E.R. 1029, C.A.

Inland Revenue Commissioners v. McMullen [1980] 2 W.L.R. 416; [1980] 1 All E.R. 884, H.L.(E.).

Inland Revenue Commissioners v. Yorkshire Agricultural Society [1928] 1 K.B. 611, C.A.

Price, In re [1943] Ch. 422; [1943] 2 All E.R. 505.

Reg. v. Registrar General, Ex parte Segerdal [1970] 2 Q.B. 697; [1970] 3 W.L.R. 479; [1970] 3 All E.R. 886, C.A.

Scottish Burial Reform and Cremation Society Ltd. v. Glasgow Corporation [1968] A.C. 138; [1967] 3 W.L.R. 1132; [1967] 3 All E.R. 215, H.L.(Sc.).

Scowcroft, In re [1898] 2 Ch. 638.

United Grand Lodge of Ancient Free and Accepted Masons of England v. Holborn Borough Council [1957] 1 W.L.R. 1080; [1957] 3 All E.R. 281, D.C.

United States v. Seeger (1965) 380 U.S. 163.

Washington Ethical Society v. District of Columbia (1957) 249 F. 2d 127.

Weir v. Crum-Brown [1908] A.C. 162, H.L.(Sc.).

Williams' Trustees v. Inland Revenue Commissioners [1947] A.C. 447; [1947] 1 All E.R. 513, H.L.(E.).


The following additional cases were cited in argument:


Astor's Settlement Trusts, In re [1952] Ch. 534; [1952] 1 All E.R. 1067.




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Atkinson's Will Trusts, In re [1978] 1 W.L.R. 586; [1978] 1 All E.R. 1275.

Attorney-General v. Clapham (1855) 4 De G.M. & G. 591.

Bawden's Settlement, In re (Note) [1954] 1 W.L.R. 33; [1953] 2 All E.R. 1235.

Berry v. St Marylebone Borough Council [1958] Ch. 406; [1957] 3 W.L.R. 1029; [1957] 3 All E.R. 677, C.A.

Chartered Insurance Institute v. London Corporation [1957] 1 W.L.R. 867; [1957] 2 All E.R. 638, D.C.

Gilmour v. Coats [1949] A.C. 426; [1949] 1 All E.R. 848, H.L.(E.).

Harpur's Will Trusts, In re [1962] Ch. 78; [1961] 3 W.L.R. 924; [1961] 3 All E.R. 588, C.A.

Hummeltenberg, In re [1923] 1 Ch. 237.

Inland Revenue Commissioners v. Baddeley [1955] A.C. 572; [1955] 2 W.L.R. 552; [1955] 1 All E.R. 525, H.L.(E.).

Keren Kayemeth Le Jisroel Ltd. v. Inland Revenue Commissioners [1931] 2 K.B. 465, C.A.

Macaulay's Estate, In re (Note) [1943] Ch. 435, H.L.(E.).

National Anti-Vivisection Society v. Inland Revenue Commissioners [1948] A.C. 31; [1947] 2 All E.R. 217, H.L.(E.).

Neville Estates Ltd. v. Madden [1962] Ch. 832; [1961] 3 W.L.R. 999; [1961] 3 All E.R. 769.

Oxford Group v. Inland Revenue Commissioners [1949] 2 All E.R. 537, C.A.

Pinion, decd., In re [1965] Ch. 85; [1964] 2 W.L.R. 919; [1964] 1 All E.R. 890, C.A.

River Wear Commissioners v. Adamson (1877) 2 App.Cas. 743, H.L.(E.).

Shaw's Will Trusts, In re [1952] Ch. 163; [1952] 1 All E.R. 49.

Shore v. Wilson (1842) 9 Cl. & F. 355, H.L.(E.).

Thackrah, In re [1939] 2 All E.R. 4.

Thornton v. Howe (1862) 31 Beav. 14.

Watson, decd., In re [1973] 1 W.L.R. 1472; [1973] 3 All E.R. 678.

Wedgwood, In re [1915] 1 Ch. 113, C.A.


ORIGINATING SUMMONS

By an originating summons dated April 17, 1978, Colin Eustace Barralet, Lily Louisa Booker and Benjamin Oliver Warwick, as trustees of the South Place Ethical Society, claimed (1) a declaration as to whether the property known as Conway Hall, 25, Red Lion Square, London, W.C.1 was held by them upon (a) the trusts of a deed of declaration of trusts dated February 1, 1825, (b) the trusts of that deed as modified by a deed dated July 4, 1907, or (c) as modified by the deed of 1907 and a deed dated November 5, 1930, or (d) upon some other and if so what trusts. (2) A declaration as to whether the trusts on which the property was held were (a) for the advancement of religion or otherwise charitable or (b) were not charitable. (3) A declaration as to whether the objects of the South Place Ethical Society were (a) for the advancement of religion or otherwise charitable or (b) were not charitable. (4) If the relief sought in either paragraph (2) or paragraph (3) were granted in sense (b) thereof, then a declaration that the trustees of the Conway Hall and the trustees of the other assets, if any, of the South Place Ethical Society were at liberty to convey and assign Conway Hall and such other assets to a company intended to be incorporated under the name of The South Place Ethical Society Ltd. or such other name as might be approved by the Registrar of Companies, with a memorandum and articles of association in the form of drafts annexed to the summons to be held for the purposes set out in




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the draft memorandum. (5) A declaration that the objects in the draft memorandum were (a) for the advancement of religion or otherwise charitable or (b) were not charitable. (6) Alternatively that, if necessary, pursuant to sections 13 and 14 of the Charities Act 1960 or otherwise a scheme might be ordered and settled for the administration and management of the trusts affecting Conway Hall and such other assets on the footing that the trusts now affecting the property had become impracticable and that the property ought to be applied cy-pres. The summons also asked for certain representation orders, execution of the trusts, further or other relief and provision for the costs.

The facts are stated in the judgment.


Owen Swingland Q.C. and David Ritchie for the trustees.

John F. Mummery for the Attorney-General.

John L. Knox Q.C. and Robert Ham for the Treasury and Inland Revenue Commissioners.


DILLON J. I have been asked to hear argument on question 3 raised by this originating summons, and to give judgment on that question before hearing argument on the other questions raised in the summons. Question 3 seeks a declaration as to whether the objects of the South Place Ethical Society (a) are for the advancement of religion or otherwise charitable or (b) are not charitable.

The society started as the congregation of a chapel at South Place in Finsbury, which was opened in 1824. It adopted the name "South Place Religious Society" in the 1860s, and changed that name to "South Place Ethical Society" in 1887. The name "South Place Ethical Society" has been retained ever since. The chapel was closed in 1927 and sold, and a site in Red Lion Square was acquired, on which the present and well-known Conway Hall was built. It is named after Moncure Conway, who was minister at the chapel for a long time in the last century, and has been the society's base ever since 1930.

The present objects of the society are stated in rule 2 of its rules: "The objects of the society are the study and dissemination of ethical principles and the cultivation of a rational religious sentiment." These objects have been among the objects of the society since around the turn of the century, but before 1930 there was an additional and plainly non-charitable object, namely, the promotion of human welfare in harmony with advancing knowledge. The fact that there was at that time this additional object, and that it was dropped without any apparent change in the substance of the actual activities of the society, emphasises that the basic question in deciding whether or not the society's objects are charitable is a question of construction of those objects as set out in the society's rules, and then a question of assessing the objects as so construed against the yardstick of what the law regards as charitable.

The rules contain, in rule 22, reference to possible alteration of the objects of the society, but it is common ground that any power to alter the rules should be ignored until it is exercised. The question whether the society is now a charity has to be decided on its objects as they now are. This is in line with the observations of Atkin L.J. in Inland Revenue Commissioners v. Yorkshire Agricultural Society [1928] 1 K.B. 611, 633.




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There is no doubt at all that the members of the society are sincere people of the highest integrity. Mr. Swingland, appearing for the society, described it as being at the least a wholly learned society with a deep and thoughtful philosophy. They are not atheists, opposed to all belief in any god. They are agnostic about the existence of any god. The society is non-theistic, like all other ethical movements. The existence of God is neither affirmed nor denied. In the objects, in the phrase "cultivation of a rational religious sentiment," the word "religious" is used in a sense which eschews all supernatural belief. I shall return to this later.

Ethical principles mean, in brief summary, the belief in the excellence of truth, love and beauty, but not belief in anything supernatural. The society's beliefs are an aspect of Humanism and in the tradition of Platonism, and its ideal really represents a philosophical concept. The society further believes that the great object of human existence is the discovery of truth by, as I understand it, intellectual appreciation or reason and not revelation.

The objects refer to the dissemination as well as the study of ethical principles, and I should briefly mention the activities of the society.

It holds Sunday meetings, which are open to the public. At these meetings lectures are given, often by visiting lecturers, who may be persons of very considerable distinction, on subjects of serious and mainly intellectual interest, and the lectures are followed by discussions. There are other lectures on special occasions, such as the Conway Memorial Lectures, in memory of Moncure Conway. These are also open to the public. The society publishes a monthly magazine called the "Ethical Record," which is available to the public, and others of its lectures are published and widely disseminated. In addition, in pursuit of the ideal of beauty and the appreciation of it, since the turn of the century, chamber music concerts have been given on Sunday nights in winter, first at the South Place chapel, and, since 1930, in the Conway Hall. These are open to the public. Performers of high repute and quality take part, and the performances at these concerts are regarded by music experts as of a very high standard indeed. There are also, and not unexpectedly, social activities, which are broadly similar to the social activities of the congregation of a parish church, but these social activities are, in my judgment, ancillary to the other activities of the society. At the highest it can be said that they serve, as with the parish church, to further the esprit de corps of the congregation, and this in turn helps to further the cultivation of the rational religious sentiment.

However high minded the members are, the question for decision is whether the objects of the society are charitable. It is well known that the development of the English law as to what is or is not a charity has been empirical, but Lord Macnaghten's division of charitable objects into four classes in his speech in Income Tax Special Purposes Commissioners v. Pemsel [1891] A.C. 531 has always been found convenient and has been followed.

In the present case Mr. Swingland, for the members of the society, contends primarily that the society is charitable because its objects are for the advancement of religion, but he says, alternatively, that it is charitable because its objects are for other purposes beneficial to the community within the fourth of Lord Macnaghten's categories, or are




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for the advancement of education. Mr. Mummery, for Her Majesty's Attorney-General, neither supports nor opposes the society in its claim that its objects are for the advancement of religion, but he does support the society in claiming to be charitable on the ground that its objects are for the advancement of education or other purposes beneficial to the community within the fourth category. The Inland Revenue Commissioners, for whom Mr. Knox appears, oppose the society's claims root and branch. They have been joined in these proceedings because the solicitor for the affairs of Her Majesty's Treasury intimated that there was no claim to the society's assets as bona vacantia, and there was therefore no one else who opposed the arguments that the society is a charity.

One of the requirements of a charity is that there should be some element of public benefit in the sense that it must not be merely a members club or devoted to the self-improvement of its own members. In the case of this society I have no doubt that it is not just a members club and that it is not merely concerned with the self-improvement of its members. In its objects there is reference to the cultivation of a rational religious sentiment; that in my judgment means cultivation wherever it can be cultivated and not merely cultivation among the members themselves.

I propose therefore to consider first the claim that the society is charitable because its objects are for the advancement of religion. In considering this, as in considering the other claims, I keep very much in mind the observation of Lord Wilberforce in the Scottish Burial Reform and Cremation Society Ltd. v. Glasgow Corporation [1968] A.C. 138, 154G, that the law of charity is a moving subject, which may well have evolved even since 1891. Mr. Swingland's submissions seek to establish that this is, indeed, so, having regard to current thinking in the field of religion.

Of course it has long been established that a trust can be valid and charitable as for the advancement of religion, although the religion which is sought to be advanced is not the Christian religion. In Bowman v. Secular Society Ltd. [1917] A.C. 406, Lord Parker of Waddington gave a very clear and valuable summary of the history of the approach of the law to religious charitable trusts at pp. 448 to 450. He said, at p. 449: "It would seem to follow that a trust for the purpose of any kind of monotheistic theism would be a good charitable trust." Mr. Swingland accepts that so far as it goes, but he submits that Lord Parker should have gone further, even in 1917 because the society's beliefs go back before that date and the court should go further now. The society says that religion does not have to be theist or dependent on a god; any sincere belief in ethical qualities is religious, because such qualities as truth, love and beauty are sacred, and the advancement of any such belief is the advancement of religion.

I have been referred to certain decisions in the United States of America, which suggest that Mr. Swingland's arguments on this point would be likely to be accepted in the United States of America, and that the society would there be regarded as a body established for the advancement of religion. One decision is that of the Supreme Court of the United States in United States v. Seeger (1965) 380 U.S. 163. That was concerned with the exemption of a conscientious objector from conscription on the ground of religion. The decision is not of




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course binding on me, but the reasoning merits serious consideration, not least because it really states the substance of much of the argument that Mr. Swingland is putting forward, and states it with great clarity. The judgment of the court really gives as the ratio in the opinion of the court, delivered by Clark J., at p. 176:


"A sincere and meaningful belief, which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption [on the ground of religion] comes within the statutory definition."


In his separate opinion, concurring with the opinion of the court, Douglas J. said, at p. 192:


"a sincere belief, which in his life fills the same place as a belief in God fills in the life of an orthodox religionist, is entitled to exemption."


There is also a decision of the United States Court of Appeals for the District of Columbia in Washington Ethical Society v. District of Columbia (1957) 249 F. 2d 127, in which it was held that the Washington Ethical Society was entitled to exemption from local taxes or rates in respect of its premises under an exemption accorded for buildings belonging to religious corporations or societies and used for religious worship. The report of the judgment of the court is brief. It seems, however, to have adopted a definition of the verb "to worship" as meaning to perform religious services, and to have adopted a dictionary definition of religion as "devotion to some principle; strict fidelity or faithfulness; conscientiousness, pious affecting or attachment," see p. 129. In the Washington Ethical Society case the judgment is brief, and the context of the Act undoubtedly weighed with the court. In United States v. Seeger, 380 U.S. 163 the judgments and the reasoning are much more thorough, and a great deal of weight has been placed on the views of modern theologians, including Bishop John Robinson and the views that he expressed in his book "Honest to God."

In a free country - and I have no reason to suppose that this country is less free than the United States of America - it is natural that the court should desire not to discriminate between beliefs deeply and sincerely held, whether they are beliefs in a god or in the excellence of man or in ethical principles or in Platonism or some other scheme of philosophy. But I do not see that that warrants extending the meaning of the word "religion" so as to embrace all other beliefs and philosophies. Religion, as I see it, is concerned with man's relations with God, and ethics are concerned with man's relations with man. The two are not the same, and are not made the same by sincere inquiry into the question: what is God? If reason leads people not to accept Christianity or any known religion, but they do believe in the excellence of qualities such as truth, beauty and love, or believe in the platonic concept of the ideal, their beliefs may be to them the equivalent of a religion, but viewed objectively they are not religion. The ground of the opinion of the court, in the United States Supreme Court, that any belief occupying in the life of its possessor a place parallel to that occupied by belief in God in the minds of theists prompts the comment that parallels, by definition, never meet.

In Bowman v. Secular Society Ltd. [1917] A.C. 406, 445 Lord Parker of Waddington in commenting on one of the objects of the




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society in that case, namely to promote the principle that human conduct should be based upon natural knowledge and not upon supernatural belief, and that human welfare in this world is the proper end of all thought and action, said of that object, at p. 445:


"It is not a religious trust, for it relegates religion to a region in which it is to have no influence on human conduct."


That comment seems to me to be equally applicable to the objects of the society in the present case, and it is not to be answered in my judgment by attempting to extend the meaning of religion. Lord Parker of Waddington has used the word "in its natural and accustomed sense."

Again, in United Grand Lodge of Ancient Free and Accepted Masons of England v. Holborn Borough Council [1957] 1 W.L.R. 1080, Donovan J. in delivering the judgment of the Divisional Court, after commenting that freemasonary held out certain standards of truth and justice by which masons were urged to regulate their conduct, and commenting that, in particular, masons were urged to be reverent, honest, compassionate, loyal, temperate, benevolent and chaste, said, at p. 1090: "Admirable though these objects are it seems to us impossible to say that they add up to the advancement of religion." Therefore I take the view that the objects of this society are not for the advancement of religion.

There is a further point. It seems to me that two of the essential attributes of religion are faith and worship; faith in a god and worship of that god. This is supported by the definitions of religion given in the Oxford English Dictionary (1914), although I appreciate that there are other definitions in other dictionaries and books. The Oxford English Dictionary gives as one of the definitions of religion: "A particular system of faith and worship." Then:


"Recognition on the part of man of some higher unseen power as having control of his destiny, and as being entitled to obedience, reverence, and worship;"


In Reg. v. Registrar General, Ex parte Segerdal [1970] 2 Q.B. 697, which was concerned with the so-called Church of Scientology, Buckley L.J. said, at p. 709:


"Worship I take to be something which must have some at least of the following characteristics: submission to the object worshipped, veneration of that object, praise, thanksgiving, prayer or intercession."


He went on to say that, looking at the wedding ceremony of the scientologists, he could find nothing in the form of ceremony which would not be appropriate in a purely civil, non-religious ceremony such as is conducted in a register office, and that it contained none of the elements which he has suggested are necessary elements of worship. He then said:


"I do not say that you would need to find every element in every act which could properly be described as worship, but when you find an act which contains none of those elements it cannot, in my judgment, answer to the description of an act of worship."


The society really accepts that worship by that definition, which in my view is the correct definition in considering whether a body is




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charitable for the advancement of religion, is not practised by the society, because, indeed, it is not possible to worship in that way a mere ethical or philosophical ideal. I have been referred, as setting out the views of the society, to a pamphlet issued in 1979 by Mr. Cadogan, the secretary of the society. It is headed "The Two Meanings of Worship." After referring to the fact that the society had abandoned prayer in 1869, that is to say, in Mr. Cadogan's words, that particular form of worship that is addressed to a personal god, a supreme being, a deity, Mr. Cadogan went on to say:


"There are two kinds of worship, natural and supernatural. It is worship of the supernatural that we have transcended. For further guidance we should look to our appointed lecturers. The one who very specifically addressed himself to the subject of worship was the late Lord Sorenson."


He then quotes from an article of Lord Sorenson's, published in the "Ethical Record" in 1971, where Lord Sorenson said:


"Worship is not necessarily theological. The word is a contraction of 'worth-ship,' which means appreciation. Notwithstanding understandable prejudice, itself a feeling in any humanist, in fact they too engage in worship. They do so when, like myself, they sit in their garden and do not argue with the flowers, but simply absorb their delight, and thus find benediction. They do so when for a while they allow music to nourish their hearts, when they have any kind of aesthetic experience, when in fellowship they possess a sense of profound kinship of hearts in communion, and when they find emotional satisfaction in devoted service to an ideal or a great cause, or when they see an infant gazing into its mother's eyes. This appreciation others call worship. It is an emotional response to something or someone, beyond yet related to oneself."


It seems to me that that is not worship in the sense in which worship is an attribute of religion.

One of the matters that has been pressed in argument and which weighed with Douglas J. in United States v. Seeger, 380 U.S. 163, is the position of Buddhism, which is accepted by everyone as being a religion. It is said that religion cannot be necessarily theist or dependent on belief in a god, a supernatural or supreme being, because Buddhism does not have any such belief. I do not think it is necessary to explore that further in this judgment, because I do not know enough about Buddhism. It may be that the answer in respect of Buddhism is to treat it as an exception, as Lord Denning M.R. did in his judgment in Reg. v. Registrar General, Ex parte Segerdal [1970] 2 Q.B. 697, 707. Alternatively, it may be that Buddhism is not an exception, because I have been supplied with an affidavit by Mr. Christmas Humphreys, an eminent English Buddhist, where he says that he does not accept the suggestion that "Buddhism denies a supreme being." I would not wish to suggest in any way that Buddhism is not a religion.

The society therefore fails in my judgment to make out its case to be charitable on the ground that its objects are for the advancement of religion. I turn therefore to the two other heads, the fourth category of other purposes beneficial to the community and the category of trusts for the advancement of education.

The fourth category developed from the matters specified in the




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preamble to the Statute of Elizabeth, but it has long been recognised that it is not limited to those matters actually listed in the preamble which do not fall within Lord Macnaghten's other three categories of the relief of poverty, the advancement of education and the advancement of religion. It is also clear, as stated in Tudor, Charities, 6th ed. (1967), p. 85 and also at p. 120, that the fourth category can include trusts for certain purposes tending to promote the mental or moral improvement of the community. It is on the basis of mental or moral improvement of the community that animal welfare trusts have been supported. But it is plain that not all objects which tend to promote the moral improvement of the community are charitable.

Again, as Wilberforce J. pointed out In re Hopkins' Will Trusts [1965] Ch. 669, 680-681, "beneficial" in the fourth category is not limited to the production of material benefit, but includes at least benefit in the intellectual or artistic fields.

In Incorporated Council of Law Reporting for England and Wales v. Attorney-General [1972] Ch. 73, Russell L.J., at pp. 88-89, seems to have taken the view that the court can hold that there are some purposes "so beneficial or of such utility" to the community that they ought prima facie to be accepted as charitable. With deference, I find it difficult to adopt that approach, in view of the comments of Lord Simonds in Williams' Trustees v. Inland Revenue Commissioners [1947] A.C. 447, 455, where, in holding that the promotion of the moral, social, spiritual and educational welfare of the Welsh people was not charitable, he pointed out that it was really turning the question upside down to start with considering whether something was for the benefit of the community. He said, at p. 455:


"... there are, I think, two propositions which must ever be borne in mind in any case in which the question is whether a trust is charitable. The first is that it is still the general law that a trust is not charitable and entitled to the privileges which charity confers, unless it is within the spirit and intendment of the preamble to the Statute of Elizabeth, which is expressly preserved by section 13 (3) of the Mortmain and Charitable Uses Act 1888. The second is that the classification of charity in its legal sense into four principal divisions by Lord Macnaghten in Income Tax Special Purposes Commissioners v. Pemsel must always be read subject to the qualification appearing in the judgment of Lindley L.J. in In re MacDuff [1896] 2 Ch. 451, 466: 'Now Sir Samuel Romilly did not mean, and I am certain Lord Macnaghten did not mean, to say that every object of public general utility must necessarily be a charity. Some may be, and some may not be.' This observation has been expanded by Lord Cave L.C. in this House in these words: 'Lord Macnaghten did not mean that all trusts for purposes beneficial to the community are charitable, but that there were certain beneficial trusts which fell within that category; and accordingly to argue that because a trust is for a purpose beneficial to the community it is therefore a charitable trust is to turn round his sentence and to give it a different meaning. So here it is not enough to say that the trust in question is for public purposes beneficial to the community or for the public welfare; you must also show it to be a charitable trust.'"




[1980]

 

1575

1 W.L.R.

In re South Place Ethical Society (Ch.D.)

DILLON J.


Therefore it seems to me that the approach to be adopted in considering whether something is within the fourth category is the approach of analogy from what is stated in the preamble to the Statute of Elizabeth or from what has already been held to be charitable within the fourth category.

The question is whether the trust is within the spirit and intendment of the preamble, and the route that the courts have traditionally adopted is the route of precedent and analogy, as stated by Lord Wilberforce in Brisbane City Council v. Attorney-General for Queensland [1979] A.C. 411, 422. One of the difficulties of this approach is that it is often difficult to say which of Lord Macnaghten's categories has been held to cover some particular decided case. Many cases, such as In re Hopkins' Will Trusts [1965] Ch. 669 and, in the view of the majority of the court, the Incorporated Council of Law Reporting case [1972] Ch. 73 have been held to be charitable under two categories: advancement of education and the fourth category of other purposes beneficial to the community. The argument often puts the claim to charitable status, as in the present case, on two or three of the four headings, and the judgments have not differentiated.

There are three cases which are put before me as analogies in the present case. The earliest is In re Scowcroft [1898] 2 Ch. 638. There, there was a devise of a village club and reading room to be maintained for the religious and mental improvement of people in the neighbourhood, and there was an additional reference that it was to be kept free from intoxicants and dancing and to be used for the furtherance of conservative principles. Stirling J. regarded this as being a valid charitable trust because it was for religious and mental improvement, and he held that the reference to conservative principles was ancillary and not a sufficient limitation to prevent it from being a perfectly good charitable gift, as he clearly thought it would be if it were for the furtherance of religious and mental improvement alone.

Then in In re Hood [1931] 1 Ch. 240 there was a trust for the application of Christian principles to all human relationships, and this was linked to the reduction and ultimate extinguishment of the drink traffic. It was held that the trust for the application of Christian principles to all human relationships was a good charitable trust. The trust was put forward in the lower court by Mr. Crossman for the Attorney-General as being charitable for three reasons: for the advancement of religion, for the advancement of education and for the benefit of the community as being calculated to promote public morality.

Then there is In re Price [1943] Ch. 422. There what Cohen J. said about the bequest being charitable was obiter because, even if it was not charitable, its was nonetheless a valid gift to a particular society, which the society was at liberty to spend. But Cohen J.'s views are expressed at some length in a considered judgment, and I find them helpful. Mr. Knox has reserved to a higher court, should this case go there, the submission that Cohen J. was not only obiter but wrong. The trust, there, was a trust of a fund to be used for carrying on the teachings of Dr. Rudolph Steiner, and the evidence set out at p. 431 said:




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DILLON J.


"... The teachings of Steiner are directed to the extension of knowledge of the spiritual in man and in the universe generally and of the interaction of the spiritual and the physical."


The deponent went on to say that Rudolph Steiner sought to show both how this knowledge could be acquired and how it could be applied for the benefit of man in a wide range of activities. Cohen J. accepted the submission that the teachings of Rudolph Steiner were directed to the mental or moral improvement of man, and he would have held, if he had not held the gift otherwise valid, that a trust carrying on those teachings was a charitable trust. The submission had been that the trust was charitable as being for mental, moral or religious improvement. Those therefore are the available analogies.

On the question of trusts for the advancement of education the authorities show that the term "education" is to be construed very widely. In the Incorporated Council of Law Reporting case [1972] Ch. 73 Buckley L.J. in his judgment at p. 102C said that this head should be regarded as extending to the improvement of a useful branch of human knowledge and its public dissemination. In re Hopkins' Will Trusts [1965] Ch. 669, 680 Wilberforce J. said:


"... that the word 'education' ... must be used in a wide sense, certainly extending beyond teaching, and that the requirement is that, in order to be charitable, research must either be of educational value to the researcher or must be so directed as to lead to something which will pass into the store of educational material, or so as to improve the sum of communicable knowledge in an area which education may cover - education in this last context extending to the formation of literary taste and appreciation ..."


The context indicates that literary taste and appreciation did not exclude musical taste and appreciation.

I turn therefore to the objects of this society, as set out in its rules. The first part of the objects is the study and dissemination of ethical principles. Dissemination, I think, includes dissemination of the fruits of the study, and I have no doubt that that part of the objects satisfies the criterion of charity as being for the advancement of education. The second part, the cultivation of a rational religious sentiment, is considerably more difficult. As I have already said, I do not think that the cultivation is limited to cultivation of the requisite sentiment in the members of the society and in no one else. In the context the society is outward looking, and the cultivation would extend to all members of the public whom the society's teachings may reach. The sentiment or state of mind is to be rational, that is to say founded in reason. As I see it, a sentiment or attitude of mind founded in reason can only be cultivated or encouraged to grow by educational methods, including music, and the development of the appreciation of music by performances of high quality. The difficulty in this part of the society's objects lies in expressing a very lofty and possibly unattainable ideal in a very few words, and the difficulty is compounded by the choice of the word "religious," which while giving the flavour of what is in mind, is not in my view used in its correct sense. Despite this, however, I do not see that the court would have any difficulty in controlling the administration of the society's assets.




[1980]

 

1577

1 W.L.R.

In re South Place Ethical Society (Ch.D.)

DILLON J.


It is well established that a trust cannot be charitable if its objects are too vague to be carried into effect or controlled by the court. In Weir v. Crum-Brown [1908] A.C. 162, however, Lord Loreburn L.C., in discussing the kind and degree of certainty required, said, at p. 167:


"All that can be required is that the description of the class to be benefited shall be sufficiently certain to enable men of common sense to carry out the expressed wishes of the testator."


He said that he was satisfied that the trustees, or, failing them, the court, would find no difficulty in giving effect to the bequest. Those observations were approved and applied by Lord Hailsham of St. Marylebone L.C. in Inland Revenue Commissioners v. McMullen [1980] 2 W.L.R. 416, where he also referred to Lord Loreburn L.C.'s doctrine of the benignant approach to charitable trusts. It seems to me that these objects are objects which the court could control and the court could see that the purposes of the funds of the society were not misapplied. In my judgment the second part of the society's objects is also charitable as being for the advancement of education. Alternatively, by analogy to In re Price [1943] Ch. 422; In re Hood [1931] 1 Ch. 240 and In re Scowcroft [1898] 2 Ch. 638, the whole of the objects of the society are charitable within the fourth class. I propose therefore to declare that the objects of the society are charitable, but not for the advancement of religion.


[Counsel made submissions on question 4 in the originating summons. His Lordship then delivered the following judgment.]


DILLION J. The further questions which I am now asked to decide arise in very exceptional circumstances. When the South Place chapel in Finsbury was established in 1824 a declaration of trust was made on February 1, 1825, declaring the trusts of the chapel. It is headed "A declaration of trust of the Finsbury Unitarian Chapel in South Place." The operative trust declared that the chapel should be held upon trust, and the trustees would permit it:


"... to be used and enjoyed by the society or Congregation of Protestant Dissenters now assembling therein whereof the Reverend William Johnson Fox is the present minister and by the future members for the time being of the said society as a place for the public religious worship of one God even the Father and for instruction in the Christian religion as professed by the said society ..."


I am told that the expression "worship of one God even the Father" was a common phrase used by Unitarians, that is to say, those who did not believe in the doctrine of the Trinity, and therefore did not believe in Jesus Christ and the Holy Spirit as God. I think there is no doubt at all that these trusts declared by the trust deed of 1825 were valid charitable trusts for the advancement of religion.

On p. 9 of the trust deed there is a power to vary certain provisions of the trust deed, which is expressed in the following terms:


"Provided nevertheless and it is hereby declared that upon or at any time or times after the date and execution of these presents it shall be lawful for two thirds of the members for the time being of the said society who shall be present at two distinct and successive




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DILLON J.


meetings to be duly convened for that purpose in manner hereinbefore expressed and which meetings shall be held at the distance of one calendar month and not more than two calendar months from each other to alter vary or rescind any of trusts powers provisions regulations and restrictions hereby created or declared or which shall for the time being subsist in relation to the mode of electing or removing trustees ministers or other officers or of charging or disposing of all or any part of the said trust estate or of convening and holding public meetings for the purposes of the said trust or otherwise howsoever."


On the advice of eminent King's Counsel to the effect that this power enabled the trustees to alter the charitable purposes of the trust, a deed of variation was executed in 1907, substituting new objects, and a further deed of variation was executed in 1930, further amending the objects, producing objects which, though as I have held in my judgment delivered this morning, they are charitable, are not objects for the advancement of religion. They are charitable under quite different headings. In these circumstances I am asked to consider the validity of the two deeds of variation.

The trouble, as it seems to me, is that if the words "or otherwise howsoever" in the proviso on p. 9 of the deed are to be construed so widely as to enable the charitable objects to be altered, then there is no limit constraining the new objects to be also charitable, and the power of alteration would necessarily be void as perpetuitous. So I do not see how the 1907 and 1930 deeds of variation can be of any effect at all. I think the true view of the power of variation on p. 9 is that it merely enabled there to be an alteration of matters of machinery and administration, and the power could not be exercised to convert the charity which had been established by the deed and declared by the primary trust into even a charity for a religion of a different description or for teaching different doctrines than those imported by the terms of the original trust: cf. the observations of Lord Eldon L.C. in Attorney-General v. Pearson (1817) 3 Mer. 353, 411-412.

The immediate effect of that is to leave the original trusts, which are broadly the trusts of a Unitarian chapel, in operation. But there is a further proviso at the end of the 1825 trust deed, which is very unusual in its terms. It reads:


"Provided always and it is hereby lastly declared that ... in case of [sic] the said Society of Protestant Dissenters shall at any time hereafter be totally dissolved or dispersed so that the public worship of God in the said chapel shall be discontinued for the space of two years successively then and in such case it shall be lawful for the trustees for the time being thereof and they are entrusted and required to convey and assure the said trust estate and the chapel and other buildings thereon erected with the appurtenances unto such persons or persons in such manner or for such purposes either religious or civil as two-thirds of such trustees for the time being if exceeding eight in number, otherwise as the whole of such trustees or any six or more of them shall jointly order direct or appoint in that behalf. ..."


That provision could not initially have been valid, because purposes which are "either religious or civil" are not exclusively charitable, and




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DILLON J.


therefore the power would have been perpetuitous: cf. the decision of Eve J. in In re Friends' Free School [1909] 2 Ch. 675.

In 1927 the chapel was closed and the site was sold, but the land in Red Lion Square on which the Conway Hall has since been erected was acquired with the proceeds and other moneys of the South Place Ethical Society, and it seems to me that the Conway Hall must be held on the trusts of the trust deed of 1825 so far as regards the moneys derived from the proceeds of the South Place chapel.

The history has been set out in detail in the evidence which I have, and it shows the gradual change, particularly in the early and middle part of the last century, in the beliefs of the congregation of the South Place chapel. Prayer was discontinued in the early 1860s, and the congregation, which had adopted the name "South Place Religious Society" in the 1860s, changed that name to "South Place Ethical Society" in 1887. There is evidence that, even in the time of Mr. Fox, who is named in the trust deed, and specifically in the 1830s, there was a movement of opinion on the part of Mr. Fox and his congregation away from the Unitarian position as it had been at the date of the trust deed, and there was some secession from the congregation, partly for that reason but partly also because of difficulties in Mr. Fox's domestic life. The upshot is that for over 100 years the society meeting in the South Place chapel, and subsequently in the Conway Hall, has not been a "Society of Protestant Dissenters" at all. There has been, moreover, no public worship of God in the chapel or in the Conway Hall for over 100 years. This is plainly stated in the affidavit of an eminent Baptist minister, Dr. Payne, now deceased, and has been accepted in cross-examination by Mr. Cadogan, the present secretary of the South Place Ethical Society.

There has been no violent dispersal of the Society of Protestant Dissenters. What has happened is that those who did not adhere to the views which came to be professed in the chapel, particularly when Dr. Moncure Conway was appointed minister, will have left. Others of course died. Those who remained no longer remained as members of a Society of Protestant Dissenters. The consequence of discontinuance of public worship of God in the chapel for the space of two years and upwards therefore followed 100 years ago, possibly much earlier. I think the true view is that the Society of Protestant Dissenters, which was referred to in the trust deed, has effectively been totally dissolved and ceased to exist.

Therefore, the events which bring the final proviso into operation have happened, but the invalidity of the final proviso has been cured by the Charitable Trusts (Validation) Act 1954, and I am satisfied, having had the authorities under that Act read to me, that this proviso is an imperfect trust provision within the meaning of that Act. Therefore the position is that the trustees are entitled and bound to convey and assure the trust estate, which will be the Conway Hall, "to such person or persons in such manner and" - which I think must be the correct reading, rather than "or" - "for such purposes, religious or civil, being charitable" as the requisite number of the trustees appoint.


 

Declarations accordingly.


Solicitors: Jacques & Co; Treasury solicitor; Solicitor to the Inland Revenue.


T. C. C. B.