§ 5.42 p.m.
§ House again in Committee.
§ LORD MILNER OF LEEDSI am not altogether clear as to the precise position, and perhaps I may be corrected if I am wrong. As I understand it, there are two ways by which reviews or inquiries can be initiated. In the first place, under Clause 6 the Commissioners can at any time, of their own volition or otherwise, institute an inquiry. Under Clause 10 it is a matter for the local authority to initiate such an inquiry, and the consent of any particular charity would be required in order to enable that inquiry to proceed. It seems to me that the noble Lord, Lord Saltoun, expects that with the local council it will be only a matter of the town clerk, or it may be someone else, writing to the Commissioners and giving sufficient reasons for the Commissioners, if they think fit, to initiate an inquiry, which I gather is the form of inquiry the noble Lord would desire. I should have thought that it would be desirable that local authorities, having local knowledge, should be able to initiate such an inquiry. They may have some complaint to them, or some suggestion of some kind, and it would not appear unreasonable for the Bill to provide that local authorities should have the right, with the consent of the trustees in the case of a particular charity—and I am not altogether clear whether if the charity is one of a group that the particular charity will have the right to object or not—
§ THE LORD CHANCELLORIt will have to get the consent of every charity, whether one of a group or not.
§ LORD MILNER OF LEEDSI am obliged to the noble and learned Viscount. That clears up one point in my mind. So an inquiry could not be held at the instigation of a local authority in that form without the consent of every charity concerned, whether it be an inquiry into one charity or an inquiry into a group of charities. Therefore I should have thought that the noble Lord was fully protected in what he fears—namely, that there might be some local influence brought to bear which might result in an inquiry which 121 obviously, by reason of publicity and so forth, might do great harm to a particular charity.
Furthermore, it seems to me that it would be asking rather too much of the Commissioners if everybody requesting an inquiry had to go to the Commissioners in order that they might initiate it. I should have thought that it was quite sensible for the local authorities, the majority of whom would, I imagine, be in favour of any local charity and not anxious to damage it in any way, to initiate art inquiry, and that it was the most convenient and practical course. It seems to me, therefore, that the Government are right in the contention that they put forward and the noble Lord's views would be covered.
LORD SALTOUNI want to say straight away that I am much obliged for the care and consideration that has been given to this matter by the noble and learned Viscount the Lord Chancellor. I frankly confess that he lets me out personally. But the kind of people who are really concerned—and I am only taking examples—are the Boys' Brigade and the Boy Scouts, as I instanced in what I said before, or Dr. Barnardo's Homes, who are in competition with the local authority homes. Those are the kind of people who are not covered even by the Amendment of the noble and learned Viscount. My Amendment has this advantage: that if the noble and learned Viscount's Amendment is accepted, you go before the Commissioners, if you go at all, as consenting parties; the Commissioners do not know the origin or the reason for it all and are completely in the dark. But if the council knows that it has to approach the Commissioners first, then that stops any locally important gentleman who wants to do so from trying to put on pressure. For that reason, and because I must keep faith with my friends, I still persist in my Amendment.
LORD HAWKESurely this is a matter on which it would be rather silly that we should divide. I do not believe that the Government, on full consideration, will fail to see that the noble Lord has a good case. The Charity Commissioners are a central body for the control and regulation of charities. Surely it is only reasonable and fair that any request for an inquiry, which must throw up a 122 great deal of dust locally, should at any rate have their consent. Would the Government not agree to consider this point between now and the next stage of the Bill and see whether some compromise cannot be reached? It puts us in the considerable difficulty of voting against the Government we are supposed to support, and we do not like doing that if we can help it.
§ THE LORD CHANCELLORI do not think my noble friend Lord Hawke can say that I have been at all "stonewalling" on this matter. We brought forward our procedure on the original matter. It is open for the trustees to go to the Commissioners, and, as I say, at the end of the day the review must come to the Commissioners. The position of access to the Commissioners is made perfectly clear. Now, in order to meet the fears of my noble friend Lord Saltoun, I have put in the provision with regard to local charities, as opposed to a national charity—and all those the noble Lord quoted were national charities.
I have tried to approach this whole Committee stage on the basis that we should, as a Committee, try to improve the Bill. I have been moved in the directions that were asked on Second Reading, and on almost every point where I have been asked I have said that I will consider it. But I must remind my noble friend Lord Hawke of this fact: I have already compromised. I have already departed from the view of the Nathan Committee, and the view which is contained in the Amendment of the noble Lord, Lord Silkin. There comes a point when my noble friend Lord Hawke is not asking for compromise; he is asking me to surrender the principle of cooperation on an equal basis. I do not think that that is reasonable. I suggest that my noble friend Lord Saltoun might at this stage consider what I have said. I have considered what he has said, and if he and my noble friend Lord Hawke still feel strongly about it they can put down a further Amendment on the Report stage. Surely, that is the reasonable way of meeting discussion of this sort.
LORD SALTOUNI realise the force of what the noble and learned Viscount has said, but the real point at issue is this—and I have never really had it clarified 123 all through this Bill, and I have not found anybody who can clarify it for me. The local troops of Boy Scouts are local charities, and the same is true of all the other charities that I have indicated. There is no way that I have yet discovered of preventing them from being considered local charities, although they are bound by an affiliation to the Headquarters. That puts me in this difficulty, and I am sure the noble and learned Viscount will see my point. If he or I could find a definition that would cover all these groups and local bodies that have local trusts they would find the best way to carry out their work. Now this Bill comes down and says that all local trusts shall be subject to this, and that is all.
§ THE EARL OF BUCKINGHAMSHIREPerhaps, as an old Scout, I could throw a little light on this picture. Before the war I worked very hard for the Boy Scouts' Association, and I should like to make it quite clear that every single group—and that includes Cubs, Scouts, Senior Scouts and Rovers—has its own finance. Except through the "bob-a-job" week they do not pay any form of subscription to the headquarters. I understand that this applies equally to Guides. This is where the difficulty arises. If, in some way, these groups of Scouts and companies of Guides could be, shall I say, exonerated from registering in this way, it would be a tremendous help.
§ THE LORD CHANCELLORMay I make the matter quite clear to my noble friend Lord Buckinghamshire? I should think I was a Scout long before my noble friend was born, so I have a pretty long connection with the movement. I think he will agree that in 99.9 per cent. of the troops of Scouts there is no local charitable fund which is worked on a small subscription. In the other ½ per cent. there may be a local fund of £1,000 or £500 or the like. Of course, there may be certain gifts which come in. The only matter we have to consider is where there is a local fund, which may be quite a small fund connected with the local troop. What we want to do, and the object of the discussions which my noble friend Lord Dundee mentioned and undertook would go on when the noble Viscount, Lord Bridgeman, was 124 speaking yesterday, is to find a method. I am quite sure that we shall be able to find a method of dealing with these local charitable funds. But the last thing we want is by this Bill to force every troop of Scouts and Guides—it might be an isolated patrol and so on—to come in and submit their accounts. I simply cannot believe that it will happen. All I am asking is that we should be given time to have the discussions to find a method which is agreeable to the Scout Movement. Naturally, that is the first thing I want. I do not think my noble friend of Buckinghamshire need have any fears.
§ THE EARL OF BUCKINGHAMSHIREI am grateful to the noble and learned Viscount for that explanation. But might I ask one thing? Is he talking about this ½ per cent. as those which have a capital account of, say, taking his figure, £1,000?
§ THE LORD CHANCELLORThat was really what I was thinking, yes.
LORD SALTOUNI am quoting from memory, but my information is that the Scouts have something like 10,000 local trusts, and the Guides 20,000. I hope that is right. Most of those will have capital, and it is for that reason that I tried to get the limit in Clause 4 (2) (b) raised, but the Government would not look at it. That would save a lot of this trouble. My difficulty is that these are local charges. I have not, and the Lord Chancellor has not, found any way of bringing these in. One has also to think of charities like Dr. Barnardo's—
§ THE LORD CHANCELLORWould my noble friend permit me to interrupt him? I said just before the Royal Commission that one way of dealing with them was to except them under Clause 4 (2) (b). That is a perfectly easy way of doing it.
LORD SALTOUNI am grateful to the noble and learned Viscount. That was the purport of my first Amendment. I am reluctant to force this Amendment to a Division, if there is any chance of getting some accommodation on this point. What I want is to see these charities protected. Is there anything we can do?
§ THE LORD CHANCELLORI am extremely sorry. I am always anxious to do anything to help, but after what 125 I have done and what I have said in every direction I can only leave myself in the hands of the Committee. I have said that we will consider it. I have said that we will discuss it. I have said that we can except it. That is one way of dealing with it. I do not know what my noble friend wants to ram down my throat now. I have tried to be as reasonable as possible. I am afraid that I cannot do more.
LORD SALTOUNI do not want to ram anything down the noble and learned Viscount's throat. What I do want is some ray of hope. I am perfectly ready to discuss it, and put the Amendment down again on the Report stage, if that is likely to bring any help. If the noble and learned Viscount thinks we can get any further on the Report stage I shall be very glad.
§ On Question, Amendment negatived.
§ THE LORD CHANCELLORI explained this Amendment in the course of my answer to the noble Lord, Lord Saltoun, and unless any of your Lordships wants further information I formally beg to move.
§
Amendment moved—
Page 11, line 6, leave out from ("may") to ("and") in line 10 and insert (", subject to the following provisions of this section, initiate, and carry out in co-operation with the charity trustees, a review of the working of any group of local charities with the same or similar purposes in the council's area,").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§
LORD SILKIN moved in subsection (1) to leave out
with the consent of the charity trustees of any local charities in the council's area (other than ecclesiastical charities), and may carry out in co-operation with the trustees a review of the working of those local charities,
and insert:
and carry out a review of the working of any local charity in the council's area".
§ The noble Lord said: This Amendment relates to the power which is conferred on the local authorities to carry out reviews of certain local charities. As the clause stands, they can do it only with the consent of the trustees. I think it can be assumed that the power to hold a review will be rarely exercised in respect of those local charities especially where the trustees are constantly alive to their duties and keep the working of 126 the charity under review. If a review in co-operation with the local authority would be desirable in those cases, the trustees would undoubtedly welcome the assistance of the local authority and no problem would arise. But there are cases where the trustees have not vigorously pursued their duties; it is just in those cases that a review of the work of the local charity will be most needed and it is exactly in those cases where the local authority will be debarred from initiating a review. As I said, the occasion will rarely arise, but I think that in those rare cases where the trustees are not doing their duty and not carrying out the purposes of the trust vigorously the local authorities ought to have power to carry out those reviews, even though the trustees may not agree. So the purpose of my Amendment is to enable them to carry out this review without necessarily getting the consent of the trustees. I beg to move.
§
Amendment moved—
Page 11, line 7, leave out from beginning to ("and") in line 10 and insert the said new words.—(Lord Silkin.)
§ THE LORD CHANCELLORI think this falls just on the other side of the line from the Amendment of my noble friend Lord Saltoun. I think it goes too far to suggest that the council should be able to do this without the consent of the charity trustees. The essence of a review is to enable the different charities and the statutory services to co-ordinate their work so as to make the best use of their respective resources. Just as I am afraid I rather turned on my noble friend Lord Saltoun the last time because I thought that he was rejecting the idea of partnership, so I think it would also be an infringement of partnership and cooperation on an equal basis if the local authority could do it without the consent of the trustees.
I think we have to take the charity trustees along with us. After all, there are the strong powers which exist in the Commissioners and, after the procedure which I have suggested, in the Home Secretary at the request of the Commissioners. There are the powers of accounts, inquiries and scheme-making powers, and I think that with all this one can hope that the trustees will be on their toes, as indeed the majority always have been, 127 and that they will accept this new co-operation and will take part in it. Therefore, as I have stood firm in the other direction, I would ask the noble Lord not to press me to deviate from the middle course in this one.
§ LORD MILNER OF LEEDSI, too, would express the hope that my noble friend might think it right to withdraw the Amendment. In view of all that has been said in the last hour, obviously it would be wrong to give an overriding power to the local authority—I am a local authority man in many respects—to have an inquiry into or a review of a local charity without the assent of the local trustees of that charity. I think your Lordships are concerned that the trustees should, in the first instance at any rate, have a say in this matter. Eventually, in the last resort, no doubt the Commissioners will have the say, but it is surely desirable in the first instance that the trustees of any particular charity should not, without their consent, have their affairs inquired into by a local authority. I venture to hope that my noble friend will think it right to withdraw an Amendment which I feel would be in complete contradiction to the matters which have just been decided by the House, which would not be in the least desirable and would certainly prejudicially affect the feelings of many trustees, and indeed the trusts themselves, if it were put into operation.
§ LORD SILKINI do not think that I ought to be put in the position that, because an unreasonable view has just been pressed beyond what is reasonable, therefore I, putting forward a reasonable case, ought also to suffer. I am dealing with the case where the local authority is of opinion that the charity is not being properly administered. They would naturally get the consent of the trustees if they could, but in those cases it would be difficult, presumably, to get their consent. I do not want to press this point unduly. Have the local authority any alternative course in those cases where they cannot get the consent of the trustees? Can they go to the Commissioners and ask the Commissioners to have a review? If the noble and learned Viscount can give me an assurance that they have some such recourse when they feel that things are 128 not going as they should, I should be most happy. I do not want to press this Amendment, particularly if there is some alternative remedy.
§ THE LORD CHANCELLORYes, they can go to the Commissioners in the case that the noble Lord mentioned, where the charity is not doing its work. They could go to the Commissioners if it was a question of one of a group of charities not being "prepared to play" in a scheme of co-operation. There would be more difficulty in regard to a sanction in the last one—the Commissioners would have great difficulty in taking action. But in the first there would be no difficulty at all. If the charity trustees were not doing their job the Commissioners could act. If the charity trustees were being purblind as to the need for co-operation there would be more difficulty; but I should have thought, with the case being put to them from two important quarters, that something could be done. I want to be quite frank with the noble Lord.
§ LORD SILKINI should like to look at this matter again, because I feel that that is not a satisfactory position in which to leave it. Here we are talking of extreme cases but we have to legislate for them—where you have an unsatisfactory position; where the trustees are unwilling to carry out their duties properly; where they are unwilling to co-operate with the local authority in having a review. There there ought to be some remedy. I withdraw this Amendment, but I should like to look at it again and to return to it if I find that there is no alternative remedy available in a case of that kind. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ THE LORD CHANCELLOR: I beg to move Amendment No. 29.
§ Amendment moved—
§
Page 11, line 18, at end insert—
("(3) No review initiated by a council under this section shall extend to any charity without the consent of the charity trustees, nor to any ecclesiastical charity.")—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
129§ THE LORD CHANCELLOR: I beg to move Amendment No. 32.
§
Amendment moved—
Page 11, line 2, leave out ("is initiated") and insert ("so extends").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 11, as amended, agreed to.
§ Clause 12 [Co-operation between charities, and between charities and local authorities]:
§ 6.17 p.m.
§
VISCOUNT COLVILLE OF CULROSS moved, in subsection (1) to leave out the first "or" and after "district" to insert "borough included in a rural district, or rural parish". The noble Viscount said: The rubric to this clause reads:
Co-operation between charities, and between charities and local authorities.
This Amendment seeks to add to the list of councils which will come within the scope of "local authorities" for the purposes of this clause. I feel certain that, with the possible exception of my noble friend Lord Saltoun, the Committee will agree that the various councils and charities in an area ought to be able to co-operate, and pay money from the one to the other, in order to provide the services which either the trust or the duties of the local authority prescribe. But the defect of the clause as it stands at the moment is that only councils down to the level of a county district council may so co-operate with local trusts. There are, however, an enormous number of trusts which operate on parish level only and do not come into the rather wider sphere of the urban district or rural district council.
§ I have moved this Amendment in order to have included in the list of authorities with whom the trustees may co-operate those smaller councils, the council of a parish or of a new body, which I believe will soon come into existence, a borough in a rural parish, so that they may do things which are already set out in subsection (2) of this clause and can pay out trust funds in order to do so. Parish councils have a considerable list of powers—for instance, the provision of allotments, village halls and playing fields; and there are one or two curious miscellaneous powers, such 130 as providing water, footpaths and bridle paths and to maintain churchyards and so on, all of which are very commonly the purpose of small local trusts. I believe that it would be a good thing if the trustees of these small trusts could cooperate with councils where they are providing the same kind of service in the same locality, and where an interchange of money between them should be possible; because in some cases, at any rate, small councils may contribute towards the work of the trustees. This Amendment would enable a two-way flow, and I hope that your Lordships will feel that it would improve the Bill. I beg to move.
§
Amendment moved—
Page 11, line 30, leave out ("or") and after ("district") insert ("borough included in a rural district, or rural parish").—(Viscount Colville of Culross.)
LORD SALTOUNI hope your Lordships will allow me the luxury of being drawn by my noble friend Lord Colville of Culross. I think it is probably the case that everywhere there is the most extraordinary co-operation between local authorities and charities, and it does not need this clause in the Bill to bring it about. I do not propose to move my Amendment on this clause in the Bill. I put it down only because I was not quite sure what was the element of compulsion. But I do not think this clause is needed to bring it about.
§ THE EARL OF DUNDEEMy noble friend Lord Colville of Culross is obviously anxious to improve this clause, the purposes of which he supports. The question is not that there may be a lot of very good and active charities confined to one parish but whether the services provided by a parish council, as the authority, would be complementary or in any way similar to the services provided by the charity. I had not considered that there were likely to be many such purposes, except perhaps in regard to recreation grounds, and it hardly appears necessary to make any statutory provision regarding co-operation on those. My noble friend has, however, mentioned a number of other purposes, such as village halls, welfare services and other things. If your Lordships will allow I should like to look into that point again. We do not want to overload the Bill with unnecessary provisions but we shall be glad to consider whether the field of co-operation is sufficiently 131 wide to justify putting down an Amendment to this clause enabling parish councils, as well as other local authorities, to have this statutory authority for co-operation. I should not like to say whether or not the field is wide enough, but in view of what my noble friend has said we shall be glad to consider it further.
VISCOUNT COLVILLE OF CULROSSI am grateful to the noble Earl. I can provide him with a formidable list, if that would be of any use. It is to be seen, of course, that the powers in this clause are only permissive. It says only "may", and is not necessarily going to overload the machinery by adding any element of compulsion. In view of what the noble Earl has said, I beg leave to withdraw my Amendment for the moment.
§ Amendment, by leave, withdrawn.
§ Clause 12 agreed to.
§ Clause 13 [Occasions for applying property cy-près]:
§ THE LORD CHANCELLORI believe that it would be convenient if your Lordships were to consider Amendments Nos. 35 to 38 together. These Amendments to the clause dealing with the conditions to be fulfilled before a cy-près scheme can be made are put down to meet the view expressed by my brethren, the Judges of the Chancery Division, that the opening words of the clause were not clear. The intention of these words is now set out in a separate subsection, subsection (2) (that is Amendment 36) which says:
(2) Subsection (1) above shall not affect the conditions which must be satisfied in order that property given for charitable purposes may be applied cy-près, except in so far as those conditions require a failure of the original purposes.They mean that the clause does not alter the law, for example, as regards there being a general charitable intention, except by defining the conditions to be fulfilled in lieu of failure of the trust—that is, the conditions which can take the place of failure of the trust. The final Amendment is a separate drafting point which the Judges have suggested. I beg to move.
§
Amndment moved—
Page 12, line 17, leave out from beginning to ("shall") in line 21 and insert ("Subject to
132
subsection (2) below, the circumstances in which the original purposes of a charitable gift can be altered to allow the property given or part of it to be applied cy-près").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLORI beg to move.
§ Amendment moved,
§
Page 13, line 7, at end insert—
("(2) Subsection (1) above shall not affect the conditions which must be satisfied in order that property given for charitable purposes may be applied cy-près, except in so far as those conditions require a failure of the original purposes.")—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLORI beg to move.
§
Amendment moved—
Page 13, line 8, leave out ("subsection") and insert ("subsections").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLORI beg to move the last Amendment in my name to Clause 13.
§
Amendment moved—
Page 13, line 12, leave out ("by virtue of the gift").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ 6.29 p.m.
§
LORD SILKIN moved after subsection (3) to insert:
(c) Where funds are raised by public appeal or public subscription for a charitable purpose, it shall be presumed that all contributions to such funds have been given with a general intention of benefiting charity unless the donor, at the time of making a contribution, has expressed an intention to benefit that charitable purpose only; and all sums contributed with an expressed intention to benefit that charitable purpose only shall be presumed to have been applied in fulfilment of that charitable purpose in priority to contributions given without limitation.
§ The noble Lord said: On the Second Reading of this Bill I indicated that there were several respects in which I thought that the extension of the cy-près doctrine contained in Clause 13 of the Bill should be extended, and I have tried my hand at putting down Amendments to achieve what I had in mind. We are all very grateful for the extension of the cy-près doctrine contained in Clause 13, and we feel that this opportunity of putting right certain anomalies which appear to exist as a result of a number 133 of legal decisions which have been made in recent years, should not be lost.
§ This Amendment relates to cases where there has been a public appeal or public subscription for charitable purposes and where, in the event, either those purposes have become impossible of achievement or the purpose has been achieved and there is a surplus of money. In both cases the effect is the same: there is a fund available which has not been capable of being expended for its original purpose. I imagine that in the first case, in the case where it has become impossible to carry out the terms of the original appeal, the money would go cy près. But I should be grateful if the noble and learned Viscount could give me an assurance that Clause 13 as it stands would cover that kind of case.
§ But there is the other kind of case where the money has been collected and has been partly distributed—at any rate, sufficient has been distributed to carry out the purposes for which the fund has been collected—and there is a surplus. The question is: what is to be done with that surplus? As the law stands at present, there are three possibilities. First, the surplus can be returned to the original donors, if they can be found and, I understand, as the law stands, if they have definitely expressed the view that the amount they have donated is for a particular purpose and for no other. Secondly, the surplus can be distributed cy près. The third possibility is that the money, the surplus, will be taken by the Crown and treated as bona vacantia. I think in practice it then goes into a fund in count and is never heard of again, though I am not sure whether that is so. At any rate, it is not used again for any charitable purpose.
§ I should like to quote two examples that have occurred quite recently of moneys that have been collected as the result of a public appeal, and where, for one reason or another, it has not been possible to expend the money for the purpose for which the appeal was made. The first is the North Devon and Somerset Relief Fund, which the Committee may remember was a fund created to help the victims of the disaster caused by flooding and storm at Lynmouth, in Devonshire, and the surrounding area in August, 1952. A committee was set up and an appeal was made, and the sum of £1¼ million was collected. It was then 134 found that, when all the claims had been satisfied—I hope generously—there was a surplus of £250,000; and the question of what should be done with that surplus came to be considered by the High Court. Mr. Justice Wynn-Parry was the Judge, and he decided that the subscribers had intended to part with the money finally for a charitable purpose; they had not intended that the surplus should be returned to them if the object of the fund was fully achieved. He therefore directed that the surplus should be applied cy près. May I say that in that particular case the subscribers to the fund were never asked whether they intended their money to be used for a general charitable purpose; they subscribed as we all subscribe to cases of that kind. Here was a disaster, and I imagine that everyone who subscribed to that fund really thought that he was subscribing to help the victims of that disaster. But the Judge, in his wisdom, and I think probably rightly, decided that this money was subscribed for a charitable purpose.
§ But then we come to another case, the Gillingham bus disaster, which occurred in 1958. Again there was a surplus of funds collected. In that case it arose because it happened that the bus company was held liable for the accident which caused the death and injuries of the victims, and they paid full compensation. As a result, very little of the money collected was used for the purpose of paying out compensation to the victims. In that case, the Court of Appeal, by a majority, thought that the money should be returned to the donors proportionately. I cannot for the life of me see the distinction between those two cases. Nor can I see how in practice you are going to return what, in many cases, are quite small sums to the donors who gave their money anonymously and who, under this majority decision, became entitled to the return. Incidentally, the Court of Appeal made no order as to what should be done with the money where the original donors could not be found.
§ There is another case which I should like to mention, the Alverston and District New Hospital Building Trust. In that case, in 1956, the Court of Appeal decided that the public appeal—there was a public appeal—was a specific one for building a new hospital in Alveston 135 and was not for general purposes; and the funds in that case were inadequate for the purpose. I confess that I cannot appreciate the distinction between the three cases. No doubt eminent Chancery lawyers with inscrutable ways, accustomed to hair-splitting (and I say this in no disrespectful spirit) and accustomed to making distinctions, would find them. But to the ordinary man in the street and the general public, and I would say to the ordinary noble Lord who is not a lawyer, the three cases seem identical. In all three cases there were public appeals; the money was not capable of being used for the particular purpose, and there was the question of what should be done with the surplus. In this last case, where the money was inadequate and the National Health Act finally brought the project to an end, the Court of Appeal held that, where the donors could be identified, they should be repaid from a trust created, in proportion to the amounts of their contributions, and that the remainder should be bona vacantia. I have quoted these three cases, in all of which there was a different decision as to the surplus, though, to my mind, the cases are really incapable of discrimination.
§ The purpose of my Amendment is to make the position quite clear, and to provide that money so contributed should be regarded as being for general charitable purposes unless the donor, at the time of making the gift, has expressed the intention of benefiting the particular charitable purpose for which the appeal is made and that only. In all other cases it is to be regarded as given for a general charitable purpose; and, being for a general charitable purpose, the cy près doctrine will apply; with the result that, where the money cannot be used for the purpose originally appealed for, it will go to a similar charity. My Amendment also provides that the moneys so collected, where they have to be returned to the original donors because there is a surplus, should first go for the purpose of charity in priority to contributions given without limitation. I hope that the idea behind the Amendment will commend itself to the Government, even if the language in which the Amendment has been put forward does not—I should be rather surprised if it did. However, I 136 should be grateful if the noble and learned Viscount would tell us what are the views of the Government in dealing with cases of this kind. Undoubtedly the present position is not satisfactory, and I think it would be a great pity if we did not take advantage of the passing of this Bill to put right matters of this kind, which have given us much cause for anxiety and which have involved the charities in so great an expense. I beg to move.
§
Amendment moved—
Page 13, line 21, at end insert the said subsection.—(Lord Silkin.)
§ 6.40 p.m.
§ LORD DENNINGMay I say a word in support of this Amendment? In the doctrine of cy près as at present laid down, there has to be a general charitable intent before it applies. Take a case such as my noble friend Lord Silkin has mentioned. Take the Alveston Hospital case, where moneys were subscribed anonymously in pennies and sixpences. What was held in that case? Although £32,000 was collected in that way, after the National Health Service came into being there was no need for the hospital. What was to happen to the £32,000? The Court of Appeal held that the £32,000 was to go back to the original subscribers—those who paid anonymously in pennies and twopences on flag days—if you could find them. It was quite obvious that they could not be found. In the case of their not being found, those moneys were to go into the funds in court. Into the funds in court they went, and in the funds in court they presumably still are.
Similarly with the money subscribed for the bus disaster at Gillingham. That was subscribed for the relatives of the cadets. It was said, "Return it, if you can, to the people who subscribed their pennies and their twopences, but otherwise let it go into the funds in court." The argument is that if it is £5 or £10 and you can identify the person, why should it not be given back to him? But in a public appeal of this kind I would submit to your Lordships that a person gives his money and that that is the end of it: he does not expect to have it back. But the court do not find a general charitable intent there. Only in the one case of the Lynmouth disaster did Mr. Justice Wynn-Parry do that, but in the other cases they did not do so. Would it not 137 be a good thing, in the case of a public appeal and of a public subscription, to presume that there is a general charitable intent? Then the moneys can be applied by the court as near as may be to the charitable object. In the case of a hospital, it could go to a home for aged people, or some such charity as that. I should like to support this Amendment.
LORD SALTOUNI cannot help thinking that the words in the fourth line, "of benefiting charity", are far too wide and vague. It happens that I could give an example which may throw some light upon what the noble and learned Lord, Lord Denning, has just said. After the Broughty Ferry lifeboat disaster the Lord Provost of Dundee raised a fund, and I happen to know what was said by subscribers to that fund, who were working people in one of the shipyards in Dundee. When the fund was advertised as reaching very large proportions indeed, they all said, "Well, that's all right; however big it gets let it be distributed among the people themselves." They may be humble folk, but I respect that opinion of theirs; and when the noble and learned Lord says that they have given to charity generally and they do not care what happens to the money afterwards, I venture to differ. These men would be very much hurt and very much offended if that money was put to any other purpose. I have always thought about the Gillingham case that, however in excess the money was of what normal people, perhaps wise people, thought it ought to be, it ought all to have been distributed among the people the fund was intended to benefit. That is one of the answers. In any case, I think that the words "of benefiting charity" are far too wide.
§ THE EARL OF CRAVENI should like to support this Amendment. The noble Lord, Lord Silkin, has stolen all my thunder, but that is all to the good.
§ THE LORD CHANCELLORI have the greatest sympathy with the object of this Amendment. I had intended to deal with some of the same cases as the noble Lord, Lord Silkin, but he has dealt with them, and I think my noble and learned friend Lord Denning would agree that there would be little served by my covering the same ground. The general difficulty that the Government 138 have felt is that this is a matter affecting the private rights of individuals who would be entitled to the property if the gift failed, and that traditionally Governments dc not interfere with such matters except on the advice of an independent inquiry. The two propositions which have always stood in our way are, first, that the wish of the donor governs the case; and, secondly, that a person who gives property for a particular purpose is prima facie still entitled to it in so far as it is not used for that purpose. To turn that into a concrete example: one would have no difficulty in agreeing as regards the shillings and sixpences, but in the Alverston case one of the gifts was for £500, and when you come to a figure of that sort it becomes rather more doubtful whether that person would have given so substantial a sum except for a particular object. An interesting thing to me is that that aspect of the matter has not caused any trouble to any of your Lordships who have spoken; but it is a matter which I should like to consider.
There are still some difficulties. As I understand the Amendment, it would apply only to gifts inter vivos, and that is only part of this problem. I think there are also difficulties in the phrase which the noble Lord, Lord Silkin, has used in order to deal with a difficult point:
… unless the donor, at the time of making a contribution, has expressed an intention to benefit that charitable purpose only;If you send a letter saying, "I enclose a cheque to be used for the purpose of your appeal", what have you done? I am merely posing some of the difficulties, and there are a number of other points.I should like to consider this point very carefully, and to consider how to get something which is workable in its details. I am in communication with the Chancery Judges on this point: I got into communication with them when I saw the noble Lord's Amendment. I will consult with them—and, of course, with my right honourable friend the Home Secretary—to see whether we can deal with the matter. Even if there are still some difficulties at the end of the day, I think that we might at any rate make the position clear as to anonymous gifts, which would be some advance. Therefore, perhaps the noble Lord will leave it to me to do the best I can to 139 find a solution. I am told that it is not an easy problem. I have merely carried out a preliminary consideration, but I shall certainly consider it further. As I say, I sympathise with the underlying object of the Amendment, and I shall work with the intention of finding a solution. I hope that the noble Lord will give me that latitude, and perhaps I shall be able to report progress before the Bill leaves this House.
§ LORD SILKINOf course I gladly respond to the noble and learned Viscount's request. I appreciate, as I said towards the end of my remarks, that this Amendment is probably imperfect in a number of respects, and on rereading it I had in mind the very point on which he has put his finger: that is, to express an intention to benefit that charitable purpose only. Very few donors write in the terms that they intend to benefit this only and nothing else, and I can quite see that this may well want re-wording. I am happy to leave it as it is, and I look forward with confidence to the noble and learned Viscount and his colleagues finding a satisfactory solution. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 13, as amended, agreed to.
§ LORD SILKINI wonder whether your Lordships would wish to go on and deal with the next Amendment, which is a new clause and may take some considerable time, or whether you think that this would be a convenient moment at which to adjourn. I am perfectly willing to go on, but it will, I imagine, take somewhat longer than the time we have allotted ourselves.
§ THE LORD CHANCELLORI am anxious to meet the noble Lord, Lord Silkin, if he feels that it will take some time. We have had a fairly long afternoon and have not made bad progress. Therefore I meet the desire which was in his look, rather than in his words, and I will ask my noble friend to act accordingly.
EARL ST. ALDWYNIn moving the resumption of the House, I should like to inform your Lordships that we shall continue the Committee stage of this 140 Bill on Thursday, March 31, when I hope we shall be able to conclude it—in fact, I am afraid we must do so on that day.
§ LORD SILKINIf the noble Earl means that we go on however long we stay, I am perfectly happy to do so on March 31. I think we shall have got over most of our difficulties. There are a number of Amendments on the Marshalled List which we have already discussed considerably, and I do not anticipate any difficulty.
§ Moved. That the House do now resume—(Earl St. Aldwyn.)
§ On Question, Motion agreed to, and House resumed accordingly.