Type of Charity in UK Law

It is a function of the Crown as parens patriae to ensure the due administration of established charities and the proper application of funds devoted to charitable purposes. In every such case the Court would be acting upon the basis that the property affected is not in the beneficial ovmership of the persons or body in whom its legal ownership is vested but is devoted to charitable purposes, that is to say, is held upon charitable trusts.

But three things may be said about it, which its author would surely not have denied: first that, since it is a classification of convenience, there may well be purposes which do not fit neatly into one or other of the headings: secondly, that the words used must not be given the force of a statute to be construed; and thirdly, that the law of charity is a moving subject which may well have evolved even since 1891.

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. To this salutary rule there is a single exception: a testator may validly leave it to his executors to determine what charitable objects shall benefit, so long as charitable and no other objects may benefit.

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.

Under English law charity has always received special treatment. It is therefore subject to special rules governing registration, administration, taxation and duration. 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.

The sum, in my opinion, is in no different position from a sum (having the requisite quality of recurrence) paid without conditions or counter stipulations out of taxed income under a covenant by a private individual to any charitable body. The Crown would neither admit nor deny that such a payment would be an annual payment to the charity within the meaning of Case III, or that the party paying it would be entitled to retain the tax, or that the charity would be entitled to recover it.