HL Deb 06 December 1971 vol 326 cc633-54

5.5 p.m.

House again in Committee.

LORD STRABOLGI moved Amendment No. 2: Page 1, line 22, leave out ("by order") and insert ("by statutory instrument which shall be laid before Parliament after being made and shall be subject to annulment in pursuance of a resolution of either House of Parliament").

The noble Lord said: My Lords, I beg to move Amendment No. 2. This Amendment refers to Clause 1(2) which allows the Secretary of State for Scotland to order, vary or revoke various provisions concerning any enactments, contracts, trust deeds or other instruments. I am not clear from the wording in the Bill whether there is any appeal against such an order. The wording merely says: "he may by order vary or revoke such provisions". I should like to ask the Minister whether a Statutory Instrument could be laid before Parliament which would be subject to annulment if the Secretary of State wishes to make an order of this kind. I am particularly concerned about this because the Nathan Report (mentioned by the noble Viscount on Second Reading) when referring to procedure in Scotland says in paragraph 347: After a scheme has been confirmed by the Secretary of State, the governing body of the trust may petition the Court of Session for an amendment of the scheme or for the substitution of a new scheme, and in amending the scheme or framing a new scheme the Court have the like powers as are conferred on the Secretary of State by the Act. Alternatively the governing body or certain other interested persons or bodies may petition the Secretary of State to have the scheme laid before Parliament. In the latter case either House may pray Her Majesty to withhold approval of the scheme or part of it. It will be noted that this procedure gives jurisdiction to the Court of Session to decide questions of law and procedure and to Parliament to decide questions of policy …

As the question of admission charges would appear to be a question of policy, I wonder whether this comes into the ambit of the second alternative proposed by the Nathan Committee. I shall be interested in what the noble Viscount has to say on this. I beg to move.


The Committee will realise that I am not an expert on Scottish law, but I will do my best to respond to the speech of the noble Lord, Lord Strabolgi. The procedure in England is that where an Act of Parliament has to be varied in order to make a scheme for a charitable trust the Secretary of State must do this by Statutory Instrument. Turning to Scotland, there is one Act of a local nature passed in 1855 which has to be varied in respect of the Royal Scottish Museum. That is one of the museums which we call "Departmental" and which is run by the Secretary of State. But my right honourable friend the Secretary of State wishes to act in this case by Statutory Instrument because he has to vary a local Act of 1855. If the noble Lord will withdraw this Amendment we are quite prepared to bring forward an Amendment to provide that where the Secretary of State has to vary an Act of Parliament for the purposes of this Bill he will do it by Statutory Instrument.

Turning to the other variations of the trusts which will be required in Scotland in order to bring in the system of charges, they do not involve an Act of Parliament; and we think that they are best made by order. I will try to describe the procedure in Scotland, which I have had to look up within the last two days. When a body of trustees in Scotland wish to have a new scheme made to vary some provision in their trust it can be done by the trustees going to the Scottish courts. It is a lengthy procedure, but no doubt it is done in that way. I imagine that that was the state of affairs as described in the Nathan Report, dated, I think, 1950. Since then, and I believe during the time of the last Government, the Secretary of State has taken special powers to make orders when he is varying charitable trusts pertaining to educational endowments. In other words, he has the same power, when it is an educational endowment, to make an order without going to the courts. But his powers do not extend to charitable trusts formed in relation to works of art, whereas the powers of the Secretary of State for Education and Science, being embodied in our 1960 Charities Act, do so extend; in fact they are much wider. In the next Amendment we shall come to the question, which the noble Lord wishes to raise, whether the provisions of the English 1960 Act should apply to Scotland.

We do not think it is worth while, for the sake of, I think it is, two cases, both concerned with paintings—the Torrie Collection and the collection of Turner drawings—to change the procedure; we take the view that this can be done by order. Noble Lords will appreciate that the applicant for the change in the trust will be the National Gallery of Scotland, because they are the Trustees. It is they who will come to the Secretary of State and say, "We cannot do what you want us to do—that is, to introduce a system of charges—if a very small proportion of our collections are subject to trusts, one of 1845 and the other of 1900, which stipulate that these particular objects should be shown free of charge". Therefore, in order that the policy which has been laid down shall work, they will apply to the Secretary of State and he will make the order. Since that is, not exactly but roughly, the equivalent of what my right honourable friend Mrs. Thatcher will do in relation to any such trust pertaining to the national museums in England, it seems to me that it is sufficient to leave the Bill as it stands. But we will introduce an Amendment to provide that the Secretary of State shall proceed by Statutory Instrument in cases where he has to alter an Act of a local nature. Therefore, if the noble Lord will now agree to withdraw his Amendment, I will put down an Amendment which embodies the change I have mentioned to bring the Scottish practice as near in line as we can under this Bill.


I wonder whether the Minister can help us any further with regard to the cases where it is not necessary to alter an enactment. If he has already said anything to cover this on the previous Amendment, I apologise. Owing to the fact that I have been sitting judicially this afternoon, I regret that I did not hear the earlier speeches. On the face of it, this is a strong thing to do, is it not? A man is charitable, generous and patriotic; he owns a valuable collection of pictures which he gives, in his lifetime, to a gallery, or leaves it to the gallery on his death. He can of course attach such conditions as he likes, including, as I understand is the case in respect of some of the Scottish ones in particular, a condition that the pictures are shown to the public free of charge. The gallery, on its part, is in no way obliged to accept the gift. If it thinks the conditions are too onerous it can decline the gift. If it accepts the gift it is, I apprehend, both illegal and dishonourable for the gallery to take the pictures and then break the conditions in the man's lifetime; and it is probably legal, but also dishonourable, to wait until his death and then break the conditions.

The clause as it is now drafted means, as I understand it, that, in the case of any such contract or declaration of trust, a Minister, without Parliamentary approval, can simply make an order validating the breach of contract or breach of trust. It is of course true that under the Charities Acts both the Commissioners, and also, in some cases, Ministers can make orders varying trusts. I am not an authority on the Charities Acts, but the noble Viscount referred on Second Reading to the Charities Act 1960 as being his authority. That was not one made during the lifetime of the last Government, as he has just said. I have looked at that Act, and while it is true that orders can be made, there are rights of appeal to the courts; and while regulations can be made by Ministers, those regulations, so far as I have followed the Act, have to be made by Statutory Instruments which are subject to the Negative Resolution procedure. It is, I suggest, a strong thing for a Minister, without any reference to Parliament at all, to be able to make an order of this kind. If I may say so, in this century, whatever Party is in power, there has been an increasing tendency for an increase in the powers of the Executive at the expense of Parliament. The question I should particularly like to ask is: what real objection is there to a Minister making an order by Statutory Instrument and subjecting it to the Negative Resolution procedure?


I have some sympathy with what the noble and learned Lord, Lord Gardiner, has said. I have always held the view that unless we respect the wishes of donors we may not get so much given to museums. But now I am on the other side of the table and I have, as best I can, to explain what is the position. I think I am right in saying that the change in the law, made quite recently in Scotland relative to educational endowments, took away the obligation to lay a Statutory Instrument. That is to say, if some testator or body of people established a school for one purpose, and it turns out that there are not any children of that kind left, you go to the Secretary of State and you get a variation, and it is done, I understand, in roughly the same way as the Charity Commissioners do in England. When the Charity Commissioners act under the 1960 Act, no Statutory Instrument is laid before Parliament. The problem raised by the Amendment is whether we should oblige the Secretary of State to proceed by Statutory Order in respect of all kinds of variations that are to be made on account of introducing charges, or only when those variations require a change in an existing Act, even of a local nature. We have considered this problem in the short time available to us and thought it right to meet the point in the Amendment for cases when the Secretary of State has to vary an Act, because this requirement is still laid on the Secretary of State for Education and Science. On the other hand, we thought it was reasonable to assimilate trusts in relation to works of art to the procedure which is now the procedure in Scotland in relation to educational endowments. This is really a matter of Scots law for the Scots themselves but it seems perfectly reasonable to me, if the noble Lord will agree to withdraw this Amendment, that we should take it back and discuss it with the Law Officers advising my right honourable friend the Secretary of State for Scotland on the point raised by the noble and learned Lord, Lord Gardiner. I think it would be unwise for me to wade in further on a subject of which I know very little.


The Minister told us earlier that in the case of the National Gallery of Scotland it would be the Trustees of the Gallery who would come forward and make the application. May I ask whether in fact the Trustees have any discretion in this matter at all or whether we shall have another situation exactly similar to that in subsection (1), in which the Trustees will simply be told by Her Majesty's Government, "You had better come forward and make this application—or else"?


That is not really the way in which the relations between the Scottish Office and the Trustees of the National Gallery of Scotland are carried on. As the noble Earl, Lord Crawford and Balcarres, has said, once the decision of Parliament is made, they must carry it out as best they can. This is an extraordinarily complex matter. It appears that if someone leaves a picture to a gallery, with the provision that it is to be seen free, it means that only that picture should be seen free. We had a case of that kind, when His late Majesty King George V left some uniforms to the National Maritime Museum on condition that they be seen free. If they are put in a case in the hall alongside the turnstiles, the museum can comply with that provision. But the lawyers tell me that it is difficult to say what this word "free" means in some of these old documents. I think that it would be the commonsense view of any body of trustees, which had a large collection which they wished to display to the public, that the whole system of access by the public to that museum which was now to be arranged should not be held up because of only one or two objects out of the whole collection. It is for that reason that I think it is expected that the Trustees of the National Gallery of Scotland will apply for this variation. This is a serious thing, which one does not like to do. But it is done almost every day, because the present is not the same as the past, and the conditions which testators would have approved of in the past they would probably not approve of now. We have to have some system of bringing these things up-to-date.


It is very curious that lawyers have such difficulty in knowing what the word "free" means when everybody else knows exactly what it means.


May I make a small technical point and apologise for it? Perhaps I misunderstood what the noble Viscount said. In inviting my noble friend to ask leave to withdraw his Amendment on the basis that the Government would consider an Amendment with regard to subsection (1), which would require the Minister to proceed by statutory order if and in so far as the imposition of charges would involve the contravention or alteration of an enactment, I thought he said that it would not be necessary to make that provision with regard to subsection (2). He drew a distinction between the trustees of works of art and of educational trusts, and I thought he was saying that in order to proceed under subsection (2) it would not be necessary to contravene an enactment and, therefore. that the proposed Amendment would not have to apply to subsection (2). I daresay I have got the noble Viscount wrong, but I notice that the language of the subsection says: In so far as the provisions of any enactment. contract, trust deed or other instrument are, in the opinion of the Secretary of State, inconsistent with the making of charges for admission… That would seem to suggest that at any rate in some cases in connection with Scotland it would be necessary for the Amendment to apply to both subsections.


The subsection refers only to Scotland and I was unaware that the Amendment had any effect whatever on subsection (1). It is because there is this one single enactment in Scotland that needs to be varied that we are suggesting that line 22 should read that the Secretary of State may vary by Statutory Instrument or, in some cases, by order.


I am very much obliged and entirely understand.


I am very grateful to the Minister for his explanation and also to my noble and learned friend Lord Gardiner, to my noble friend Lord Stow Hill and to the noble Lord, Lord Airedale, for their remarks. I am heartened by what the Minister has said and of course I will withdraw my Amendment. He gave only a qualified promise and we shall wish to study the rest of his remarks. On Second Reading the noble Viscount mentioned the Erskine Collection in Edinburgh and gave the impression that that had been transferred to the National Gallery of Scotland. I am informed that this is not so; that it is still the property of the University of Edinburgh but is on permanent loan. It was a stipulation of the original will, when these paintings were bequeathed, that they should be shown free; and, not only that, but also that all the other paintings with them should be exhibited free as well. So this Bill will seek to alter that. As we can return to the problems of the Eskine Collection and of other collections in Edinburgh on a subsequent Amendment, I beg leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

5.30 p.m

LORD STRABOLGI moved Amendment No. 3: Page 1, line 22, at end insert— ("(3) For the purposes of any order made under the preceding subsection, the Charities Act 1960 shall apply to Scotland.")

The noble Lord said: This Amendment is put down for information. On Second Reading the noble Viscount said that Clause 1(1) is necessary because the Charities Act 1960 does not apply to Scotland. The Amendment seeks to make it apply for the purposes of this order. I beg to move.


This Amendment really does land us into very deep water. I am advised that we cannot apply the relevant sections of the English Charities Act to Scotland. It seems to me that the procedures which we follow in England have some attractions, because notice has to be given that a scheme is going to be made, how the public can make inquiries about it and where they may see a draft of the scheme. The Charity Commissioners go through all that process before the Secretary of State for Education and Science or the Secretary of State for Wales makes an order.

This all starts from a definition of "charity". Obviously, if you do not know what "charity" is, you cannot put this procedure into operation. I am advised that there is no definition of "charity" in Scotland. They manage their affairs extremely well, as we know—better than we do in most cases—but this is a mystery to me. But they have several types of procedure which I have mentioned before. In Scotland you can go straight to the courts if you want to get a variation. There is power under the educational endowments for the Secretary of State to do it by order. But you could not, so I am advised, transfer to Scotland a large lump of our Act: I am told that there some of the words do not mean the same thing, and so on. Anything of that nature would require long consideration if at any time the Secretary of State thought it wise to bring in a new Charities Act for Scotland. Of course, I have not the slightest idea whether such a thing would commend itself to my right honourable friend. However, I have to tell the Committee that the advice I have, which is of an extremely firm nature, is that it simply would not legally be possible to make the whole of our Act apply to Scotland.

Therefore, when a trust has to be varied in relation to some collection that has been given to a Scottish museum, we have to find a procedure that satisfies us that it is adequate and just. We were talking about that matter on the previous Amendment. I am inclined to think that we shall have a procedure which will meet with approval if we make the small change that we proposed in the previous Amendment and leave the Secretary of State to make his orders, according to the procedures which he now adopts when he is carrying out his changes for educational endowments.


Am I not right in thinking that under the English law of charity, and, for all I know, in relation to educational trusts in Scotland, if you apply to the court you have to establish a case? It is not good enough just to say that the circumstances are now somewhat different and it is convenient if you can get rid of an obligation which hitherto you have had to accept. In particular, in the case of the British Museum, where we know that no charges have been made since its foundation—and this has gone on through two world wars, in good times and in bad times—it would be a little difficult, I should have thought, to satisfy the court that, because the Government wanted to put pressure on Trustees to make charges which the Trustees did not want to make, this was a good reason why somebody who had left a collection of pictures to a gallery on the express terms, accepted by the Trustees, that they would be shown free, should have this term varied.

I think the noble Viscount, Lord Eccles, is saying that, apart from a case where it is necessary to vary an enactment, what will happen is that, whatever the Trustees want, the Minister will say to them: "As you know, your money comes from me, and just as I insisted on your making charges, now I must deal with clearing up the contract you have made that you will show them free." Nobody will know about this. He will not have to go to any court, and he will not have to lay anything before Parliament. The whole thing would be done, and the declaration for trust varied, without anybody knowing it. What is the objection to his saying what he has done and putting it before Parliament for decision by Negative Resolution procedure?


If the Secretary of State is thought to have behaved improperly, he can be taken to the courts now. The application will be made by the Trustees of the National Gallery of Scotland. If they thought that the Secretary of State had not even bothered to read the papers, or could prove some form of improper behaviour, they could now, under the ordinary law of Scotland, bring him into court. But since it is going to be part and parcel of the way in which access to the collections as a whole is to be conducted in future, so long as the Secretary of State pursues the sort of procedure that we have in England, that will be all right. Whether he will do that, and how far he will go into it, I am afraid I do not know.

This Amendment was put down on Friday when I was out of London, and I have had only Monday morning in which to look at it. I do not think this is a particularly serious matter, because we are advised that there are only these three cases. In the one case, that of the Torrie pictures, the noble Lord is perfectly right: there has been a long standing dispute between the university and the National Gallery as to who owns these pictures. We do not really know. I believe that there is a notice under each one now, to the effect that although the picture is hanging in the National Gallery, it really belongs to the university. But there is some difference of opinion here. Then there is the collection of Turner drawings. Here I think everybody will know, after all that has gone on about this Bill, that it will not be a matter of mystery that the National Gallery is applying for a variation of the bequest. I am sorry, but I cannot give the exact procedure by which the Secretary of State makes his orders. I know, however, that he makes them in this manner, without any Statutory Instrument, for all variations in the educational endowments. That is not something new.


I am grateful to the noble Viscount for what he said. I am sure we shall wish to study it. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

5.37 p.m.

LORD STRABOLGI moved Amendment No. 7: After Clause 1, insert the following new clause:

Power of Court to annul or amend institution's determination to make charges for admission.

(".—(1) Notwithstanding any of the provisions of this Act, if the trustees or other governing body of any of the institutions to which this Act relates determine to make charges for admission to any such institution whether or not they so determine in pursuance of or in consequence of any order made by the Secretary of State under the provisions contained in subsection (2) of section 1 of this Act or of any exercise by the Commissioners of any of the powers conferred upon them by the Charities Act 1960 or otherwise, the High Court in the case of any such institution situate in England or Wales and the Court of Session in the case of any such institution situate in Scotland shall have power upon application being made to the Court in that behalf in accordance with the provisions of subsection (2) below to annul or amend any such determination in such respects as shall seem just to the Court, if the grounds set out in subsection (3) below are established.

(2) Any such application as is mentioned in the preceding subsection shall be made by any person or persons having an interest whether legal or equitable under the terms of any contract, trust deed or other instrument affecting property which is exhibited or which it is intended to exhibit for public view in any institution to which this Act relates and not by any other person or persons.

(3) The grounds referred to in subsection (1) above are that to make charges in pursuance of any such determination would be contrary to the wishes express or implied or to any direction express or implied of any settlor or testator of such property in any such contract, trust deed or other instrument under the terms of which such property was settled or bequeathed to an unreasonable extent and it shall be presumed that the making of such charges was to an unreasonable extent contrary to such wishes or direction unless it is shown that there were special reasons which made it necessary or expedient to make such charges.")

The noble Lord said: I beg leave to move Amendment No. 7, which deals with the insertion of provision for the power of the court to annul or amend an institution's determination to make charges for admission. This of course is a similar field to that covered by the Amendments that we have been discussing earlier. The noble Viscount, Lord Eccles. said that he thought that the Charities Act was working satisfactorily. In some instances. I would disagree with that. For example, the case I have in mind is the recent sale under the terms of the Charities Act, of the Dominican from the Dulwich Art Gallery. This was part of a collection of a man called Bourgeois, donated in 1810 in the Dulwich Art Gallery. He had originally wished to leave it to the British Museum, but he heard that they had powers of sale—which they had at that time—and he changed his mind. The painting remained at the Dulwich Art Gallery until earlier this year. Then the trustees decided that they wanted to raise some money, and they applied to the Secretary of State for Education and Science to sell the painting. The Secretary of State, without, to my knowledge, consulting anybody (and I am glad that the noble Viscount, Lord Norwich, is here, because he is a member of the Standing Committee on Museums and Galleries), not even the Standing Committee on Museums and Galleries, gave her permission for the sale to go ahead. Of course there was a happy ending, because Scotland stepped in, not for the first time, and bought the painting for Edinburgh, where I am glad to say it remains. If it had not been for Scotland's action, of course, the painting might have been sold abroad.

Here, it seems to me, is a case where the trustees want something and the Secretary of State agrees without asking anybody, and members of the public and interested parties—even bodies such as the National Art Collections Fund—seem to have no redress. Therefore this Amendment seeks to give the right to appeal to the High Court in England and Wales and in the Court of Session in Scotland. This is a rather broader Amendment than the other two because it gives the right to any of the museums and galleries in the United Kingdom, and not just those in Scotland.

The second subsection details the persons who can make this appeal, and the third sets out the grounds on which it can be made. I am very concerned that under the present wording of the Bill the Secretary of State may have the power to override the expressed wishes of the testators, as the noble Lord, Lord Gardiner, has said, even with the concurrence of the trustees; and some future Paymaster General or Secretary of State may come to the trustees and say, "Unless you override the terms of this trust we won't give you any money." As the noble Viscount has made clear throughout, the trustees' actions are dependent on the Government's providing money, and I think this is causing considerable concern. So I would submit to the Committee that there is a case for some appeal provision to be written into the Bill. I beg leave to move the Amendment.


I think that if the Committee will look at this clause it will be seen that we really cannot go as far as this Amendment goes, in giving to courts power which should properly remain with Parliament. The new clause says that, where a scheme of charges has been made which requires some variation in one of the trusts covering some part of the collections, if somebody should object (and I will come in a moment to possible objectors) the matter shall go to the High Court; and the High Court is given power to annul or amend the scheme. But, of course, the charges are not being made in respect of the one picture or ten pictures, or whatever may be the number in the collection or trust which is being varied. The scheme of charges is for the whole museum, and to give the High Court the power to alter, or even annul, the whole scheme of charges is really to transfer a question of policy from the Government to the Court. It might be perfectly reasonable to ask the Court whether the case made for varying the trust was, in their opinion, right or not. There is an appeal to the Court now, under Section 18(11) of the Charities Act on that point. But to allow persons to go to the Court and say, "We want you to tell us whether there are to be charges or not"; or, what is in a way even worse, "We think the charges are too high because the testator would not have minded lop but the charge is 20p", and then to give the Court the power it would have under this Amendment to change the scale of charges is something which I think noble Lords would not want to put into a Bill.

Subsection (2) of the Amendment says that: Any such application as is mentioned in the preceding subsection shall be made by any person or persons having an interest whether legal or equitable under the terms of any contract, trust deed or other instrument affecting property which is exhibited or which it is intended to exhibit to the public view… and so on. Now I am informed that there would not be anybody in this country who could apply, because there are no contracts which affect property in this way and it would always be the case that the only people who could make application would be the trustees; and they would be the gallery concerned, and would not make it unless they wanted it to be made. I do not know if I am right, but it looks as though there is a suggestion that somebody might make an application—it might be some relation of the family, or a person having an interest, legal, equitable or something of that kind. But the Court, I am advised, would not recognise any such person. It would recognise only the people who were entrusted with the property. If I make a trust of a cigarette box and present it to a museum, I cannot afterwards say that I have the power to wish to vary that trust. I have given the box away, and there would not be anybody who could apply under Section 2 in England. I do not know exactly what happens in Scotland: I have not been able to find out. I also think it would be extremely difficult to judge what was an unreasonable extent of varying a trust. Altogether I would simply rest my observations on this particular Amendment on the fact that we could not hand over to the courts the power either to vary the rates of charges or to annul the whole scheme. Therefore, although I appreciate what the noble Lord wants to do, which is to have every possible safeguard so that there is no abuse of a trust in relation to works of art, I must advise the Committee that this is not the way to do it.

5.48 p.m.


I am sorry to detain your Lordships on this Amendment. but I cannot help thinking that perhaps upon further examination the noble Viscount may think that there is more merit in it than he obviously thinks at the moment. The purpose of the Amendment is one which I think would be generally accepted by the House. Supposing that a settlor, a testator or somebody who wishes to settle property—say, a collection of valuable pictures—on trust settles it upon trustees upon terms that the trustees will cause the pictures to be exhibited without any charge being made to the public or to other persons for looking at those pictures. Let us assume that is the situation. I thought, especially from the Committee's response to my noble and learned friend Lord Gardiner, that your Lordships were very sympathetic as a whole to the idea, which I certainly would propound myself, that where a settlor has clearly expressed a wish of that sort it should, unless it is inevitable that it cannot be regarded, be taken into account and observed. There is, I think, something rather repugnant in the idea that if somebody settles upon trustees, upon trust, a collection of valuable pictures, which are perhaps in a gallery or some other place, to be exhibited free of charge to anybody who wishes to look at them and enjoy them, the settlor's wishes can be wholly disregarded. I really do not think there is as much difficulty about this Amendment as the noble Viscount says.

What does the Amendment propose? I was told by my noble friend Lord Strabolgi of a settlor who settled a collection of pictures, and it was his clear wish that no charge should be made for looking at those pictures. In that case, supposing those who run the gallery decide to make a charge to the public for looking at pictures, including those pictures, any person who comes within the category of persons described in subsection (2) may make an application to the High Court, in the case of an English trust, or to the Court of Session in the case of a Scottish trust. He has to show that he comes within the scope of subsection (2), and in order to establish that he has to show that he has either a legal or an equitable interest in those pictures, in that settled property, under the terms (if I may speak compendiously) of an instrument; namely, a deed of trust, affecting those pictures. He may be one of the trustees for the time being; the trust may have been executed a hundred years ago, and successive trustees may have been appointed. If he is one of those trustees, he fans within the description of a person who has a legal interest in those pictures under the terms of that trust affecting those pictures. I do not think there is much difficulty about that.

He may be a beneficiary under the trust; a gallery may be a beneficiary. Somebody could have an equitable interest as a beneficiary administering, or taking part with others in administering, the affairs of the gallery. He would have an equitable interest under the terms of the trust affecting those pictures. If he establishes that he comes within the category of persons described in subsection (2), he can apply to the appropriate court, but he will get no relief unless he can establish the grounds set out in subsection (3). The relief that he asks for is that the determination to impose charges should be altered, or disallowed. In order to obtain that relief, what he has to show is that the determination to impose charges contravenes the wishes of the original settlor to an unreasonable extent. The settlor in an assumed case says, "I wish my pictures to be enjoyed by the public for ever free of charge." The assumed determination entirely disregards that and imposes a substantial charge. He will not obtain any relief from the court unless he shows that that order is unreasonable; that the determination to impose charges conflicts with the settlor's wishes to an unreasonable extent.

If the noble Viscount will look at the remaining wording of the Amendment, he will see that the onus is thrown upon those who wish to impose the charges of establishing to the satisfaction of the court that it is next to inevitable that the charges should be imposed. The relevant words are: … it shall be presumed that the making of such charges was to an unreasonable extent contrary to such wishes or direction unless it is shown"— that is, where the onus is shifted— that there were special reasons which made it necessary or expedient to make such charges". There may well be special reasons. It may be the case that it is quite impossible to maintain the gallery without making those charges. It may be the case that the pictures in question are a small and unimportant part of the display in the gallery. On the other hand, you may have a case where it cannot be shown that it is essential to make the charges, or essential to make the charges in respect of every day of the week. It may be sufficient to make the charges for four or five days in the week; or the actual charges may be lower than those proposed. If you have a gallery in which the pictures in question form the substantial and major part of the collection, there is a prima facie reason for much reluctance in going against the wishes of the testator. If the gallery in substance is centred upon his collection, and it has been his wish that no charges should be made, and it cannot be shown that it is necessary in order to maintain the finances of the gallery to make a charge in respect of every day in the week on which the pictures are exhibited, the court may well think that it will be quite sufficient if the charges are made on four out of seven days of the week, and alter the determination accordingly. I hope that the noble Viscount will give some further thought to this matter. This is an Amendment which is modest in scope. It is not one which is designed to overturn in most cases the whole order; it is simply designed to apply to the case where it can be shown that those responsible for the determination are flouting to an unnecessary and unreasonable extent the clearly expressed desire of the person who collected the pictures and settled them under the terms of a trust. I hope that the noble Lord will say that he will be able to give the matter further consideration.


I am not a lawyer, but the lawyers who advised me this morning said exactly the opposite to what the noble Lord, Lord Stow Hill, has now said. As a layman, I must stick to the basic objection. There is already an appeal to the courts against an order which the Secretary of State may make for making a new scheme. The appeal may be made if it is thought that the order is unreasonable, or perhaps the behaviour of the Secretary of State improper, or something of that kind. In the 1960 Act provision is already made for an appeal to the courts. But the matter under consideration is quite different. This is saying to the courts that, in respect of one variation of a trust, the High Court, Her Majesty's Judges, shall have the power to amend the whole scheme of charges for the gallery.

In most cases, as I said before, it will appear that the words in the testator's will mean, "I charge you to show this object free to the public". But that does not cover everything in the museum. Why should the courts be able to lay down a policy and change rates of entrance fees? I think the noble Lord must consider whether this is a proper job for the courts. Unless I am badly advised, I believe that what the noble Lord said about the phrase "legal or equitable" is dubious. It is a phrase which does not exist in Scotland, so we could not apply this part of the Bill to Scotland. I understand that the trustees are the people who have the legal interest in a trust. They will make the application, so they will not take it to the court. The people who have the equitable interest are loosely described as the "beneficiaries". I believe it is true—and I looked up this matter as quickly as I could this morning—that if you take a case like the London Library, where there are subscribers, the subscribers might be considered to have a beneficial interest in the Library, and they might possibly come into this. I am advised that no court would recognise anybody who visited a museum as having a beneficial interest under a particular trust. Therefore, it looks as though I was right in what I said before: that there will he no applicants under this. In other words, putting the matter in common language, this will not work.

I appeal to the noble Lord, Lord Strabolgi, not to ask us to give over to the courts the determination of the whole scheme of charges because one part of the collection—small or considerable, I am not arguing about the size—is subject to a trust which the trustees themselves have asked to have varied in order that the charges scheme may work. I do not think that is reasonable, and I hope that the noble Lord will withdraw his Amendment.


I wonder whether the noble Viscount would answer this point? He said that there would normally be no beneficiaries that could be defined. But supposing someone had left either a collection of books, instruments, or any form of collection, specifically with the idea that the collection would be available to the people who were being trained in or interested in that subject? I take as an example a distinguished surgeon in Newcastle who had built up what I believe was one of the finest collections of surgical books in the world. He left this collection, or gave it, to the University Library in Newcastle. He gave it on the clear understanding that this collection was kept together as one collection, obviously to be used for the benefit of those people who were interested in surgery—in other words, students and so on. Surely, if one were, for some reason or another, to charge, or to deny access to, those people who ought to benefit from this gift, they would be the beneficiaries who could claim that their rights had been interfered with. Am I not right?

6.1 p.m.


In the scheme of charging we have done exactly what the noble Lord wants. Anyone who can show that he is a student of the particular collection of books will not be charged. An obvious case is the Art Library at the Victoria and Albert Museum, which is a very fine art library, and one would not be able to have access to that Art Library unless one went through the Museum. We have already said, for the exact reason which the noble Lord referred to—because we are certain this is right for purely educational purposes of that kind, for pursuing a particular interest—that a man should not be charged, and it is already one of the exemptions.


And would this apply also if, say, a set of instruments had been left for exhibition in a museum, or if a particular set of paintings had been left for exhibition in a gallery, and these had been specially brought together with the idea that they were an educational set?


I wonder whether the noble Lord realises what he is trying to encourage and how a bequest of that kind can be an absolute disaster in a library and a bane to a librarian. A good collection of medical books or any other books is one entity, and if a small part of that is left by somebody with instructions that all the books are kept together, the whole library, from the point of view of the man who wants to go and browse there, can well be ruined in this regard, because books will be separated into this one collection when they ought to be cheek by jowl with others of the same nature in another part of the library. If in fact this Amendment is going to try to perpetuate a disastrous bequest of that kind, which can do so much harm to a library and so much harm to a museum, I can only say that I am sure that the noble Lord if he went into a library would not wish to see that happen.


Of course we have noted carefully what the noble Viscount has said. I must say I was impressed by the intervention of my noble friend Lord Stow Hill, who I may say has given me much useful and helpful advice over the drafting of this Amendment which was quite beyond my powers. The noble Lord pleaded for more compromise. That is really what we need. The noble Viscount asked, "Why should the court have the right to lay down policy?". No one is asking the court to do that. On the other hand, there may be some compromise that could be arrived at. In the case of the Erskine pictures the noble Viscount really cannot do much about these because they are not the property of the National Gallery of Scotland over which he has jurisdiction; they are the property of the University of Edinburgh.

The University has absolute right to withdraw them at any time. I have reason to believe that the University might be prepared to allow them to remain there on condition that there was one free day a week, for example, which would not be unacceptable to the National Gallery of Scotland. That is the kind of compromise that could be arrived at, possibly by an independent appeal to the court. I think we shall probably wish to consider this matter between now and Report stage. I am grateful to the Minister for all the trouble he has taken to explain both this Amendment and the previous Amendments, which were very complicated and technical. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 2 [Short title]:

LORD STRABOLGI moved Amendment No. 8: Page 1, line 23, after ("Galleries") insert ("Admission Charges").

The noble Lord said: This Amendment seeks to extend and alter the Title of the Bill to make it more accurate and to describe more closely what it attempts to do. If it is acceptable to your Lordships, the Bill will then become the Museums and Galleries (Admission Charges) Bill. It seems to me that the term of the present Short Title, Museums and Galleries Bill, does not in any way described what this Bill is trying to do, which is to remove impediments to the making of charges and so on. I feel, and have felt for some years, very strongly that Titles of Bills should describe their contents wherever possible. I have the strongest objection to the modern fashion for euphemisms in this field.

We had a useful precedent in connection with the Trade Descriptions Act 1968. This started life in the time of the last Government as the Consumer Protection Bill. We had long discussions on this matter during the passage of the so-called Consumer Protection Bill through this House, and mainly due to the efforts of the noble Lord, Lord Airedale, when the Bill came back from the other place, where the Government had refused to alter the Title, they eventually agreed to its alteration. It has been a matter of great congratulation to the noble Lord, Lord Airedale, ever since, because, as he was able to prove, that Bill was not only for the protection of consumers; it was for the protection of manufacturers, traders, advertisers, and so on. Every previous Bill of that kind had always been called a Trade Descriptions Bill and that measure merely followed that tradition. Similarly, I should have thought that in the future, in view of indexing and so on, it will cause great confusion if this Bill is entitled simply the Museums and Galleries Act. Looking through an index one would have no idea what it related to. It might be about anything to do with museums and galleries and works of art. This Amendment is what I hope is a constructive attempt to give the Bill a more accurate Title. I beg to move.


I am very glad to support this Amendment. There are many aspects of museums and galleries which are much more interesting than merely admission charges. Any student or research worker researching for the legislation affecting museums and galleries would be grateful for the words "Admission Charges" in brackets, because he would then be able to say to himself straight away, "Well, I am not interested in that and I shall not have to look that one up."


Christmas is coming, and the Government are very glad to accept the Amendment.


I am grateful to the noble Viscount and am particularly glad that the Committee stage is ending on this happy note.

Title, as amended, agreed to.

House resumed: Bill reported, with the Amendment.