HC Deb 21 July 1960 vol 627 cc891-5
Mr. Fletcher

I beg to move, in page 14, line 6, after "court", to insert "or the Commissioners".

Clause 14 was a new Clause introduced in Committee. Although it was put down by the Joint Under-Secretary, we may claim that the credit for its introduction to the Bill belongs to my hon. Friends, who on Second Reading pressed strongly that the Bill should be amended so that the power of the court to make cy-près schemes could extend where property was given for specific charitable purposes as well as to those cases where there was a general charitable trust. We have put down the Amendment, however, because a point of some substance was not satisfactorily cleared up in Committee.

The whole object of the Clause is to enable the court to deal with the surplus funds that have resulted from general collections for charity, whether, for example, as a result of a colliery disaster or some other disaster which has occasioned a spontaneous outburst of charitable gifts, frequently of small amounts by a large number of people. In those cases, as the law stands, there is the presumption of a resulting gift to the donors, which means in practice that considerable funds, amounting, one is told, to something like £1 million, have accumulated in court and cannot be dealt with.

The Solicitor-General

I think I made it clear in Committee that sums of that sort which have been mentioned are not sums which are necessarily awaiting the claim of the resulting trustee.

Mr. Fletcher

I do not want to misrepresent what the hon. and learned Gentleman said, but I thought it was common ground that there are, at least, substantial sums which, as the law stands, cannot be dealt with by the courts. The Clause is intended to give the courts power to deal with these surplus funds.

Subsection (2) provides that in certain cases there is a presumption, without any advertisement or inquiry, that the donors cannot be identified. There are, of course, other cases where the donors can be identified, and where the donors can be identified then it has been thought reasonable that an attempt should be made to communicate with them to see if they want to claim the benefit of the result of the trust or whether they want to release it. I think it was common ground that in the case of the small contributions made through collecting boxes—street collections—either the donors would be unidentifiable or it would be very difficult to identify them, and it was reasonable that there should be a presumption that those gifts could be treated as though they were impressed with the general charitable intention.

If one looks at subsection (2, a) one finds—I do not think this point was brought out adequately in Committee—the presumption that the donors cannot be identified arises in respect of the proceeds of cash collections made by means of collecting boxes or by other means not adapted for distinguishing one gift from another". It so happens that on various occasions there may or may not be a collecting box, but a list is sent round sometimes on occasions of local disasters to people who want to subscribe, and they not only put money in the box but also put on a card the amount which they have contributed. In those cases, of course, although there is a collecting box the donors can be identified if people go to the trouble to try to trace all the cards and make adequate inquiries. Therefore, in those cases where there have been collecting cards as well as collecting boxes it seems to me that subsection (2, a) would not apply because there would not be in the final words of the paragraph means not adapted for distinguishing one gift from another". Therefore the words the proceeds of cash collections made by means of collecting boxes or by other means not adapted for distinguishing one gift from another are not apt to cover the case where there has been a collecting box and collecting cards as well, because if there has been a collecting card the donor could be identified, with a good deal of trouble.

Cases will arise in which there is legitimate doubt, as the language of that paragraph stands, whether there is this conclusive presumption or not, if there is no conclusive presumption under subsection (2) or if there is a doubt whether there is conclusive presumption—and no doubt in other cases—the trustees can go to the court for an order that it should be unnecessary for them to try to trace the donors or to advertise. The circumstance in which the court can make such an order is where in the opinion of the court it would be unreasonable having regard to the amount likely to be returned to the donors to incur that expense, or for some other reason it would be unreasonable to put the trustees to that expense. A case in which this arose was the Gillingham bus disaster.

The object of the Amendment is to provide that in such an event the trustees should not have to incur the expense, which might be quite considerable, of going to the court for an order but should be able to obtain an order from the Commissioners. It seems to us that it is not an unreasonable Amendment to suggest. I hope that the Government will be able to accept it for the reason that the whole scope of the Bill is to give very wide powers to the Commissioners, and to save trustees of charitable trusts the burden, trouble and expense of resorting to the courts where the Commissioners can equally well provide them with the facilities which are wanted. That is why the Commissioners are being established in this way and are being given these various powers. They are the people eminently suitable for discharging these functions and doing it in a way more expeditiously and less expensively than if recourse had to be had to the court. The object is that the Commissioners in this case should have the same powers as the court.

11.30 p.m.

The Solicitor-General

The hon. Member for Islington, East (Mr. Fletcher) has moved the Amendment persuasively and moderately, if I may say so wish respect, but before I deal with its real substance I should like to advert to two points which he made. The first is the question of the balances of just short of £1 million which are the unexpended balances of the mining disaster funds. This is what I said about the matter in Committee, and perhaps it is important that it should be repeated here: It is that which has led a number of people to think that those are funds lying idle. I am told that that is not so. In practically all the cases, the money is either being used for the original charitable purposes which are not exhausted or being applied cy-près."—[OFFICIAL REPORT, Standing Committee A, 30th June, 1960; c. 366.] This does not affect the hon. Member's argument but I thought it right to repeat what I said in Committee.

The other question is the reading and construction of the Clause. 1 agree with the hon. Member's reading of subsection (2, a). I think that the words … not adapted for distinguishing one gift from another … cover collecting boxes as well as other means. The structure of the Clause is that subsection (1) is the normal procedure; there is the general duty to find to whom the property belongs where there is a resulting trust, and to give it back to the persons to whom it belongs. But subsection (2) provides, where the property is the proceeds of a cash collection or other means not adapted for distinguishing one gift from another, a conclusive presumption arises, without any advertising, that it belongs to donors who cannot be identified, and also in the other particular cases there set out.

Subsection (3) is a different matter. The hypothesis upon which it proceeds is that it is quite possible to find out to whom the property belongs; and it is a question of whether powers under subsection (3) should be exercised by the court alone or by the Commissioners as well. The hon. Member is right in saying that the Bill gives wide powers to the Commissioners; but it is, always has been, and appears again in the Bill, basic to the legislation giving powers to the Commissioners that they should have no powers in relation to anyone who is not a charity. That appears in a number of places in the Bill, perhaps most strikingly in Clause 18 (3), where it says: The Commissioners shall not have jurisdiction under this section to try or determine the title at law or in equity to any property as between a charity or trustee for a charity and a person holding or claiming the property or an interest in it adversely to the charity … That principle, I think, applies in relation to this Clause.

The Bill maintains that the Commissioners shall not have power to determine as regards property claimable by a charity and claimable adversely to whom it should belong; and it would, in our view, be a gross breach of that principle to allow the Commissioners to expropriate for charity property which, ex hypothesi, may belong to a private person. Incidentally, the Amendment gives that without any right of appeal.

Subsection (3) will normally be exercised, in our view, when the High Court is already seized of the matter and has the matter before it, say, in determining whether there is a resulting trust. It may find that there is a resulting trust, but it may say, nevertheless, that the expense incidental to an inquiry in chambers to determine who were the donors is not justified, and it will then exercise the power under subsection (3, a). Similarly, it may say that owing to the lapse of time the donors cannot be expected to have the property returned to them. But it is, in our view, right that it should be the High Court, and not the Commissioners, which should decide that property should not be returned to the persons to whom it, ex hypothesi, belongs.

Amendment negatived.