National Anti-Vivisection Society v Commissioners of Inland Revenue

JurisdictionEngland & Wales
JudgeViscount Simon,Lord Wright,Lord Porter,Lord Simonds,Lord Normand
Judgment Date02 July 1947
Judgment citation (vLex)[1947] UKHL J0702-1
Date02 July 1947
CourtHouse of Lords
The National Anti-Vivisection Society
The Commissioners of Inland Revenue

[1947] UKHL J0702-1

Viscount Simon

Lord Wright

Lord Porter

Lord Simonds

Lord Normand

House of Lords

Viscount Simon

My Lords,


In this very important and most difficult case, going as it does to the foundations of the conception of one kind of charitable trust, I have read and re-read the opinion which has been prepared by my noble and learned friend Lord Simonds. Notwithstanding views to a different effect which are to be found in the minority judgment of the Master of the Rolls in the Court of Appeal, and in another opinion about to be pronounced in this House, I cannot escape from the course of argument contained in Lord Simonds' opinion, or from the conclusion at which he arrives. I therefore move that this appeal be dismissed with costs.

Lord Wright

My Lords,


The issue in this case is whether the Appellant Society is entitled to exemption from Income Tax under section 37 of the Income Tax Act, 1918, on the ground that it is a body established for charitable purposes only. The year of charge is the year ending the 5th April, 1943, and the subject is the Appellant's invested income aggregating £2,876 15s. 7d. The Special Commissioners before whom the matter came felt bound to allow the claim on the authority of In re Foveaux, ( 1895 2 Ch. 501), in which Chitty J. had held that the Society was a charity, though they would, apart from authority, have held that on balance the object of the Society, so far from being for the public benefit, was gravely injurious thereto, and therefore that the Society could not be regarded as a charity. They also on the ground of the same authority rejected the argument that the Society could not claim to be a charity because the alteration of the law by means of legislation was a main object of the Society. That decision was reversed by the Revenue Judge, Macnaghten J., and his decision was affirmed on appeal by the Court of Appeal, by a majority, the Master of the Rolls dissenting.


The Commissioners heard a great deal of evidence, and their material conclusions in the case they stated were:

"We are satisfied that the main object of the Society is the total abolition of vivisection, including in that term all experiments on living animals whether calculated to inflict pain or not, and (for that purpose) the repeal of the Cruelty to Animals Act, 1876, and the substitution of a new enactment prohibiting vivisection altogether� .

We think it has been proved conclusively that:�

(A) A large amount of present day medical and scientific knowledge is due to experiments on living animals;

(B) many valuable cures for and preventatives of disease have been discovered and perfected by means of experiments on living animals, and much suffering both to human beings and to animals has been either prevented or alleviated thereby. We are satisfied that if experiments on living animals were to be forbidden (i.e., if vivisection were abolished) a very serious obstacle would be placed in the way of obtaining further medical and scientific knowledge calculated to be of benefit to the public."


They were also prepared, if it was to be assumed that any public benefit in the direction of the advancement of morals and education amongst men would or might result from the Society's efforts to abolish vivisection, of which they had no express evidence, and if their function was to determine the case on the footing of weighing an assumed public benefit, in the direction of the advancement of morals amongst men, which could or might result from the Society's efforts to abolish vivisection, to hold on the evidence that any such assumed public benefit was far outweighed by the detriment to medical science and research, and consequently to the public health, that would result if the Society succeeded in its object, and that on balance the object of the Society, so far from being for the public benefit, was gravely injurious thereto, with the result that the Society could not be regarded as a charity.


I think the first thing to examine is whether In re Foveaux (supra) was rightly decided and whether the Commissioners were justified in regarding themselves as bound by that authority.


Before examining In re Foveaux ( supra) it will be convenient to bear in mind what is now generally accepted, that the question whether a gift or fund is charitable is a matter for the decision of the Court on all the materials before it. "Charitable" in this context has reference to charitable in the legal sense. "Charity," indeed, is here a word of art of precise and technical meaning. From very early times the decision was the function of the Court. Thus rules grew around the very sketchy list in the Statute of Elizabeth ( 43 Eliz. c. 4). Judicial precedents were established. An early attempt to simplify the problem by a classification under main heads was the summary under four heads submitted by Sir Samuel Romilly (then Mr. Romilly) arguing in Morice v. Bishop of Durham, 10 Ves. 522. These heads were, first, relief of the indigent, second, advancement of learning, third, the advancement of religion, fourth, which is the most difficult, the advancement of objects of general public utility. This classification substantially was adopted by Lord Macnaghten about 85 years later in his famous list of charitable purposes in Pemsel's case ( 1891, A.C. 531 at p. 583) which is too familiar to call for quotation here. The noble and learned Lord had emphasised that he was discussing the legal meaning of charity; like Sir Samuel Romilly he remarked on the distinction between the popular and the legal meaning of the word.


It is not necessary at this time of day to observe that not every object which is beneficial to the community can be regarded as charitable. The legal significance is narrower than the popular. This was fully and explicitly held by this House in A.G. v. National Provincial Bank, ( 1924, A.C. 262), which followed re Macduff, ( 1896, 2 Ch. 451), and was discussed more recently, but more in relation to the construction of general words than to specific instances, in Chichester Diocesan Fund v. Simpson, ( 1944, A.C. 341). Even if the object were in some sense beneficial to the community, it would still be necessary to discover that it fell within the spirit and intendment of the instances given in the Statute of Elizabeth. Healthy and manly sports are certainly in fact beneficial to the public, but apart from special concomitants are not generally entitled to qualify as charitable objects. On the other hand societies or institutes for scientific research would generally be charities as being for the benefit of mankind under the fourth head, or alternatively as falling within the extended significance given to education or the advancement of learning, which includes, in modern times, science. Even societies coming within the first three heads of Lord Macnaghten's classification would not be entitled to rank as legal charities if it was seen that their objects were not for the public benefit. Where a society has a religious object it may fail to satisfy the test if it is unlawful, and the test may vary from generation to generation as the law successively grows more tolerant. Lord Parker in Bowman v. Secular Society, ( 1917, A.C. 406, at pp. 448 seq.), gives a long list illustrating this principle. It cannot be for the public benefit to favour trusts for objects contrary to the law. Again, eleemosynary trusts may, as economic ideas and conditions and ideas of social service change, cease to be regarded as being for the benefit of the community. And trusts for the advancement of learning or education may fail to secure a place as charities, if it is seen that the learning or education is not of public value. The test of benefit to the community goes through the whole of Lord Macnaghten's classification, though as regards the first three heads, it may be prima facie assumed unless the contrary appears.


In re Foveaux ( supra) was decided in 1895 by Chitty J. The headnote is simply:

"Societies for the suppression and abolition of vivisection are charities within the legal definition of the term 'charity'".


The particular societies in question were either the predecessors of the present Appellant or were substantially identical for all relevant purposes. The object, as stated by Chitty J., was the total suppression of the practice of vivisection. At the time when the decision was given an Act entitled "the Cruelty to Animals Act, 1876." was in force; that Act made it unlawful and an offence to perform on a living animal any experiment calculated to give pain except subject to the restrictions imposed by the Act. One provision was that the particular experiment was to be performed with a view to the advancement by new discovery of physiological knowledge or of knowledge which will be useful for saving or prolonging life or alleviating suffering It was generally required by the Act that the animal should be under a sufficient anaesthetic, save in special circumstances, in which case a certificate was necessary under stringent conditions, and experimenters were to hold a licence. This Act has remained in force since then. Its repeal is the main object of the Appellant Society. Chitty J. refers to the Act as being the subject of controversy between the supporters and opponents of the practice of vivisection. The former, he said, argue that the practice under carefully guarded provisions is justifiable because it tends to promote the welfare of the human race and even animals. The latter argue that the practice is really unjustifiable. The Judge seemed disposed to regard the issue as depending on how the element of the improvement of morality was to be considered. But he had already accepted the position that the Court does not enter into or...

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