HL Deb 27 July 1960 vol 225 cc860-8

After Clause 13, insert the following new Clause—

Application cy-près of gifts of donors unknown or disclaiming

(" .—(1) Property given for specific charitable purposes which fail shall be applicable cy-pr ès as if given for charitable purposes generally, where it belongs.—

  1. (a) to a donor who, after such advertisements and enquiries as are reasonable, cannot be identified or cannot be found; or
  2. (b) to a donor who has executed a written disclaimer of his right to have the property returned.

(2) For the purposes of this section property shall be conclusively presumed (without any advertisement or enquiry) to belong to donors who cannot be identified, in so far as it consists—

  1. (a) of the proceeds of cash collections made by means of collecting boxes or by other means not adapted for distinguishing one gift from another; or
  2. 861
  3. (b) of the proceeds of any lottery, competition, entertainment, sale or similar money-raising activity, after allowing for property given to provide prizes or articles for sale or otherwise to enable the activity to be undertaken.

(3) The court may by order direct that property not falling within subsection (2) above shill for the purposes of this section be treated (without any advertisement or enquiry) as belonging to donors who cannot be identified, where it appears to the court either—

  1. (a) that it would be unreasonable, having regard to the amounts likely to be returned to the donors, to incur expense with a view to returning the property; or
  2. (b) that it would be unreasonable, having regard to the nature, circumstances and amount of the gifts, and to the lapse of time since the gifts were made, for the donors to expect the property to be returned.

(4) Whore property is applied cy-près by virtue of this section, the donor shall be deemed to have parted with all his interest at the time when the gift was made; but where property is so applied as belonging to donors who cannot be identified or cannot be found, and is not so applied by virtue of subsection (2) or (3) above.—

  1. (a) the scheme shall specify the total amount of that property; and
  2. (b) the donor of any part of that amount shall be entitled, if he makes a claim not later than twelve months after the date on which the scheme is made, to recover from the charity for which the property is applied a sum equal to that part, less any expenses properly incurred by the charity trustees after that date in connection with claims relating to his gift; and
  3. (c) the scheme may include directions as to the provision to be made for meeting any such claim.

(5) For the purposes of this section, charitable purposes shall be deemed to 'fail' where any difficulty in applying property to those purposes snakes that property or the part not applicable cy-près available to be returned to the donors.

(6) In this, section, except in so far as the context otherwise requires, references to a donor include persons claiming through or under the original donor, and references to property given include the property for the time being representing the property originally given or property derived from it.

(7) This section shall apply to property given for charitable purposes, notwithstanding that it was so given before the commencement of this Act.")


My Lords, I now rise to move that this House doth agree with the Commons in Amendment No. 8—the new clause to be inserted after Clause 13. This clause has been inserted to meet the views expressed in both Houses, that provision should be made to enable gifts raised in response to public appeal or public subscription for a particular purpose which fails or has been achieved to be applied cy-près. Your Lordships will remember that the noble Lord, Lord Silkin, raised this point, and I promised that I would deal with it before the Bill came back here. Hitherto, this has not been possible where the subscribers had a particular, as distinct from a general charitable, intention in making their gifts so that the money still belonged to them if the gift failed. Whilst it would be wrong simply to expropriate private rights over property, it is legitimate to take account of the realities of the matter and to recognise that for one reason or another very little of the money ever finds its way back to the owners.

The clause deals with the subject as follows. I hope that I make this clear, and I particularly hope that my noble friend Lord Saltoun will interrupt me without hesitation if I am not making any point clear, as I am very anxious that he should follow what we have in mind. It proceeds on the footing that the gifts still belong to the donors; otherwise they would already be applicable cy-près or would be bona vacantia, and it is thought that they cannot be bona vacantia. Subsection (1) of the new clause declares that property given for a particular charitable purpose shall be applicable cy-près if it belongs to, first, donors who cannot be identified or cannot be found and, secondly, donors who disclaim it. I do not think anyone could have any objection so far. The reasons for including donors who disclaim it are, first, that without it a mere disclaimer might result in the property becoming bona vacantia and, secondly, that subsection (4) back-dates a disclaimer in these circumstances to the date of the gift, which may be important for estate duty purposes.

The rest of the clause deals with the expropriation for Charity and schemes of various kinds of property coming unifier subsection (1) (a). A cy-près scheme may be made by the Charity Commissioners as well as by the court; but that does not apply To an order—my noble friend will appreciate that—under subsection (3), which may be made only by the count. First, the clause expropriates for amity all money subscribed in the ways mentioned in subsection (2), whether those subscribers want their money back or not. But this subsection does not expropriate, for example, the value of an antique given to a charity sale, or, secondly, a subscription, because a subscription of that kind falls to he dealt with under the provisions of the clause.

Next, subsection (3) gives power to the court to expropriate for charity any property which it would be unreasonable to attempt to return to the owners, either because the expense would be out of all proportion to any success likely to attend the attempt, or because, for one reason or another, no sensible subscriber would now be expecting it back anyway. Then (and I think this is the point which my noble friend should specially have in mind) subsection (4) enables a scheme to be made in respect of the money for the time being unclaimed, but without prejudice to the right of the donor to claim his entitlement within twelve months. It is believed that this clause steers a proper and practical course between the extremes of the present law, on the one hand, and anything which might be regarded as sharp practice to the subscriber, on the other. That is what we have tried to do. It is a difficult problem, as I indicated, and I hope that we have been successful in the matter. I beg to move that this House doth agree with the Commons in Amendment No. 8.

Moved, That this House doth agree with the Commons in the said Amendment.—(The Lord Chancellor.)

5.52 p.m.


My Lords, it gives me great pleasure to commend this Amendment. It was an Amendment which I had the privilege of moving. I think it aroused a good deal of interest, not only in the House, but outside. We have particularly in mind the Gillingham bus disaster, where large sums of money were collected which subsequently turned out to be unnecessary because compensation was provided elsewhere. This created a problem as to what should be done with the money that had been collected. This Amendment deals with this type of problem in a completely satisfactory way. It required a good deal of careful drafting, and it becomes only too clear that my own Amendment was drafted in a wholly inadequate fashion. But the Amend- ment now before us deals with the problem, and I personally feel very grateful indeed.

I feel grateful for another reason. The noble and learned Viscount, in connection with the previous debate, referred, quite incidentally, to the fact that a good many of us give our time here in the public interest, freely and without hope of reward. One of the ways in which we do it is to scrutinise most carefully complicated Bills of this kind and to put forward suggestions for amendment. One of the most gratifying things—one is only human—is that occasionally one's ideas are accepted. Nobody would wish to go on for ever putting forward Amendments which are never acceptable to the Government and never put into practice; and one gets a great sense of satisfaction to find that in an important matter of this kind, and not merely in a drafting Amendment, one has been instrumental in influencing an important piece of legislation. I hope that the House will forgive me for introducing this personal note, but as one who probably has moved as many Amendments in the last few years as any noble Lord in this House, I feel that there is some satisfaction in having Amendment No. 8 put to the House and accepted.


My Lords, perhaps your Lordships will allow me to be a little general in my comments, because I do not want to interrupt your Lordships by rising many times in the course of these discussions. In the first place, this Bill make a great change in regard to English charities. I am bound to say—I have never concealed it—that I view it with a considerable amount of apprehension. We are doing away with the old Charity Commissioners and we are setting up a new body, and I think that the future course of English charity will depend very much on how they handle the problems that come before them. I should also like to take the opportunity of repeating what I said on the last occasion this Bill was in your Lordships' House; that I and the charities which I was asked to represent, and which instructed me in this matter (when I say "instructed", I am using that word not in the legal sense, but in the sense that they told me what I had to say), owe a great debt of gratitude to the noble and learned Viscount who has been in charge of the Bill for the concessions which he has given us and on which, I may say, we quite definitely now rely.

With regard to the clause immediately before us, I am bound to say that I am completely at issue with the noble Lord, Lord Silkin, and with the Government. I say that for this reason: it is founded upon the Gillingham case; and if I remember, the Gillingham case (I hope I shall be corrected if I am wrong) was one M which a motor bus ran out of control and killed a number of children. The Mayor of Gillingham raised a large fund for the benefit of the relatives of the children who were killed. But the motor bus company came forward and said that they would undertake all compensation, and it was therefore felt that this fund was no longer needed, and so the money had to be returned.

I hope and believe that my feelings in the mater are those of the man in the street. During the passage of the Bill through your Lordships' House, I quoted expressions of opinion and feeling of the workers in the Caledon shipyard in connection with the Broughty Ferry disaster. When they heard that the monies that they had given, in a very generous and full subscription, were going to other purposes than those of the bereaved families, they were most indignant. They said that, no matter how wealthy those relatives would be, they all wanted the fund to be distributed in that manner for which it had been subscribed. In the Gillingham case, my own feeling has always been that whatever money was collected should have, been given to the people who had been bereaved. That was the purpose for which it was subscribed. I am not one of those people who would ever dare to measure the value to a woman of the death of her son. I think that is the feeling of the general public.

I can give your Lordships a parallel case, rather before that time. It was an English case, and it makes my point quite perfectly, I think. It concerns the Mumbles lifeboat disaster. The institution to which I belong made what I think was a most generous subscription in aid of the bereaved families; a public appeal was launched and there was collected a large surn of money—I think it came to over £100,000. All of that money was devoted to the eight families, and I hold that, in the same way, the money raised after the Gillingham disaster should have been devoted to the families who were bereaved.

It so happened that during that year the Lifeboat Institution had lost either two or three other people in circumstances comparable with those of the Mumbles disaster: they lost their lives on service while going out to save other people. It would have been a most pleasant thing for the Institution to which I belong to have had some of that large Mumbles Fund to devote to the families of the other people who had lost their lives in a precisely similar manner, but who happened not to be in that particular Mumbles boat. But it never occurred to us to put in a plea. We realised that the money had been subscribed by the public for these particular families and not for any other families. The other people were looked after, as was proper and right, and the whole of the money went, and is still going, to the bereaved families. That is the view of the man in the street, and that is my view on this matter. That is why I regret that the Government have taken up this clause.

It seems to me that if this is the law, if a public appeal for the victims of any particular disaster is to be issued in the future it will have to be stated that the funds will go to those people so far as is thought proper, but that if the amount exceeds the sum which the authorities consider is sufficient it can be applied cy près. If such an announcement were made, it would be doubtful if one would get as great a response from the public. That is one reason why I very much regret this clause. I realise that it is of no use to oppose it and I accept it. I hope that it will work reasonably well. I should like to ask the noble and learned Viscount a question on subsection (6). Is there any limit of time here? Does the limit of 40 years, under Section 17, apply or have any effect? Is there a limit on the time during which money or property can go back to the original donor or his representatives?


My Lords, may I say a word on this clause, as one who practised for many years in the Chancery Division and therefore had to deal with a good many of these charities which failed? I should like to congratulate the noble and learned Viscount on the Woolsack and those who have drafted this clause on finding a solution for what was one of the most difficult problems with which we have ever had to deal in the Chancery Division and which, from time to time, resulted in vast quantities of money given to charities being wasted on expensive inquiries to try to find out from whom they had come and who could claim them.

If I may say so, with great respect, this seems to me to be an extremely useful solution to those difficulties and one which should avoid a great deal of the throwing away of charitable money in costs, which used to occur. I am particularly interested to see that subsection (7) applies to property given for charitable purposes, notwithstanding that it was so given before the commencement of this Act, and without any date as to how far back it goes. I apprehend that there must be a good deal of money which, as a result of those old inquiries, was added to funds in court and which has been lying there for many years. I do not know to what extent it is going to be possible now to get on its legs a scheme to deal with those funds on something analogous to cy-près for the purposes for which they were originally given. If that can be done, and if this opens up that machinery, there will be certain funds which are completely locked up at the moment made available once again for valuable charities. I hope that that may be possible, although at the moment I am not quite sure.


My Lords, the noble Lord, Lord Spens, has raised a most interesting point. The only difficulty will be that while information about these funds may be available to the Charity Commission's lawyers it will not be so easily obtained by charitable trustees. I wonder whether there is any method by which publicity can be given to subsection (7), with a list of the amounts available and the type of object for which the original subscriptions were made, so that those who have in mind possible cy-près alternatives may have a sporting try.


My Lords, may I first answer the specific points? My noble friend Lord Saltoun asked about the limit of time. There is no limit of time upon the right of the subscribers to have their money back unless, in theory, a scheme is made after the advertising, when the twelve-months' limit applies. Subsection (6) is just to make sure that rights are not lost because someone has died and passed it on to his heirs.


My Lords, may I interrupt the noble and learned Viscount? That was in my mind: that a man who is dying may take a long time to die, and twelve months may elapse.


My Lords, the heir has exactly the same rights, but of course the twelve-months limit applies but starts to run only after the scheme, so that there is a fair time allowed. On the very interesting and important point raised by my noble and learned friend Lord Spens, taken up so cheerfully by my noble friend, Lord Hawke, I should like to make some inquiries. I will write to them both on that point; and I hope that they will be satisfied. I am sorry that we have not entirely satisfied the noble Lord, Lord Saltoun, because he has given much attention to this Bill and been very helpful and reasonable, even when we have not satisfied him. But we have done our best to draw the limit and I believe that it will work well.

On Question, Motion agreed to.