Type of Charity in UK Law

It is a cardinal rule, common to English and to Scots law, that a man may not delegate his testamentary power: to him the law gives the right to dispose of his estate in favour of ascertained or ascertainable persons. He does not exercise that right if in effect he empowers his executors to say what persons or objects are to be his beneficiaries.

For example, a bridge which is available for all the public may undoubtedly be a charity and it is indifferent how many people use it. But confine its use to a selected number of persons however numerous and important: it is then clearly not a charity. It is not of general public utility: for it does not serve the public purpose which its nature qualifies it to serve.

Lord Macnaghten's grouping of the heads of recognised charity in Pemsel's case is one that has proved to be of value and there are many problems which it solves.

Under English law charity has always received special treatment. It often takes the form of a trust; but it is a public trust for the promotion of purposes beneficial to the community, not a trust for private individuals. Although not a state institution, a charity is subject to the constitutional protection of the Crown as parens patriae, acting through HM Attorney-General, to the state supervision of the Charity Commissioners and to the judicial supervision of this Court.

In order to come within the Act the grant has to be for one or more of the three purposes mentioned in section 2 i.e. for the education of poor persons, or for the residence of a schoolmaster or schoolmistress, or otherwise for the purposes of the education of such poor persons in religious and useful knowledge. But the Act does not expressly or impliedly require the grant either to be for all of those purposes or to be for purposes expressed in those very words.