Scottish Burial Reform and Cremation Society Ltd v Glasgow Corporation

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Reid,Lord Guest,Lord Upjohn,Lord Wilberforce,Lord Pearson
Judgment Date26 Jul 1967
Judgment citation (vLex)[1967] UKHL J0726-3
Docket NumberNo. 8.

[1967] UKHL J0726-3

House of Lords

Lord Reid

Lord Guest

Lord Upjohn

Lord Wilberforce

Lord Pearson

Scottish Burial Reform and Cremation Society Limited
and
Corporation of City of Glasgow

Upon Report from the Appellate Committee, to whom was referred the Cause, Scottish Burial Reform and Cremation Society Limited against Corporation of City of Glasgow, that the Committee had heard Counsel, as well on Tuesday the 6th as on Wednesday the 7th, days of June last upon the Petition and Appeal of The Scottish Burial Reform and Cremation Society Limited, having a place of business at Tresta Road, Glasgow, N.W., praying, That the matter of the Interlocutors set forth in the Schedule thereto, namely, an Interlocutor of the Lord Ordinary in Scotland (Lord Milligan) of the 27th of January 1966 and also an Interlocutor of the Lords of Session there of the Second Division of the 15th of July 1966, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Interlocutors, so far as aforesaid, might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of the Corporation of City of Glasgow, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Interlocutors of the 27th day of January 1966 and of the 15th day of July 1966, in part complained of in the said Appeal, be, and the same are hereby, Recalled: And it is further Ordered, That the said Cause be, and the same is hereby, remitted back to the Court of Session in Scotland with a Direction to sustain the second Plea-in-law for the Pursuers and to proceed as accords: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellants the Expenses incurred by them in respect of the Action in the Court of Session, and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the parties entitled to the same within one calendar month from the date of the Certificate thereof, the Cause shall be, and the same is hereby, remitted back to the Court of Session in Scotland, or to the Judge acting as Vacation Judge, to issue such Summary Process or Diligence for the recovery of such Costs as shall be lawful and necessary.

Lord Reid

My Lords,

1

The Appellants seek a declarator that they are entitled to remission of rates payable to the Respondents in terms of section 4 (2) of the Local Government (Financial Provisions etc.) (Scotland) Act 1962. That section grants a partial remission where lands are occupied by a charity and are wholly or mainly used for charitable purposes. If the Appellants are a charity it is not disputed that the second requirement is satisfied in this case. The question for decision is whether they are a charity. Section 4 of the Act provides that charity means an institution or other organisation established for charitable purposes only, and that "charitable" is to be construed in the same way as if it were contained in the Income Tax Acts. It is well settled that that means that we have to apply the English law of charities.

2

The Appellants are a limited company incorporated in 1890. Their leading objects are:

"( a) To promote reform in the present methods of Burial in Scotland, both as regards the expense involved and the dangerous effects on the public health.

( b) To promote inexpensive and at the same time sanitary methods of disposal of the dead, which shall best tend to render the remains innocuous; and, in particular to promote the method known as Cremation."

3

Their Memorandum of Association prohibits any payment to members by way of dividend or profit and prohibits any payment to any director; and it farther provides that on a winding up nothing is to be distributed to members but any assets are to be transferred to some other organisation having similar objects. The paid up capital is £3,492.

4

The Appellants have for many years carried on a crematorium in Glasgow, the average number of cremations per annum being now over 2,000. They charge fees which are not intended to yield a profit, but in many years there has been a surplus, and, in addition to owning the premises for which they know seek rating relief, they have substantial reserve funds.

5

It is not disputed that to be a charity they must shew not only that their purposes are beneficial to the community but also that those purposes are within the spirit and intendment of the preamble to the Statute of Elizabeth (now set out in the Mortmain and Charitable Uses Act 1888 section 13).

6

In the Court of Session the Lord Ordinary and the Second Division (the Lord Justice-Clerk, Lord Strachan and Lord Wheatley, Lord Walker dissenting) dismissed this action on the ground that the Appellants' averments are irrelevant. All but Lord Walker held that they had failed to bring their purposes within the spirit and intendment of the preamble to the statute of Elizabeth. The Lord Ordinary, Lord Strachan and Lord Walker held that their purposes were beneficial to the community. The Lord Justice-Clerk and Lord Wheatley held that their averments were insufficient to justify that conclusion.

7

The Appellants' main purpose and activity is to promote and afford facilities for cremation. In this they were pioneers, and it may be that, if the question had arisen soon after 1890, it would have been necessary to adduce evidence of benefit to the public. But I do not think that that is now necessary. It is common knowledge that in all parts of the United Kingdom cremations are now very numerous. And the propriety of cremation was recognised by Parliament as long ago as 1902 (Cremation Act 1902). Local authorities now have power to conduct crematoria, and Glasgow now has a municipal crematorium. I cannot see why farther evidence of public benefit should be required. If there is a public benefit, the Appellants cannot on the facts of this case be disqualified because there is or might also be a profit or benefit to individuals involved in the prosecution of their objects. Nor can they be disqualified because the benefit does not extend to a sufficiently large section of the community.

8

But the Appellants must also shew that the public benefit is of a kind within the spirit and intendment of the Statute of Elizabeth. The preamble specifies a number of objects which were then recognised as charitable. But in more recent times a wide variety of other objects have come to be recognised as also being charitable. The Courts appear to have proceeded first by seeking some analogy between an object mentioned in the preamble and the object with regard to which they had to reach a decision. And then they appear to have gone farther and to have been satisfied if they could find an analogy between an object already held to be charitable and the new object claimed to be charitable. And this gradual extension has proceeded so far that there are few modern reported cases where a bequest or donation was made or an institution was being carried on for a clearly specified object which was for the benefit of the public at large and not of individuals, and yet the object was held not to be within the spirit and intendment of the Statute of Elizabeth. Counsel in the present case were invited to search for any case having even the remotest resemblance to this case in which an object was held to be for the public benefit but yet not to be within that spirit and intendment. But no such case could be found.

9

There is, however, another line of cases where the bequest did not clearly specify the precise object to which it was to be applied but left a discretion to trustees or others to choose objects within a certain field. There the Courts have been much more strict, so that if it is possible that those entrusted with the discretion could, without infringing the testator's directions, apply the bequest in any way which would not be charitable (for example, because it did not benefit a sufficiently large section of the public) then the claim that the bequest is charitable fails. But that line of cases can have no application to the present case, and it is easy to fall into error if one tries to apply to a case like the present judicial observations made in a case where there was a discretion which could go beyond objects strictly charitable.

10

In the present case the Appellants make a charge for the services which they provide. But it has never been held that objects, otherwise charitable, cease to be charitable if beneficiaries are required to make payments for what they receive. It may even be that public demand for the kind of service which the charity provides becomes so large that there is room for a commercial undertaking to come in and supply similar services on a commercial basis. But no authority and no reason has been put forward for holding that when that stage is reached the objects and activities of the non-profit earning charitable organisation cease to be charitable.

11

If then all that is necessary to bring the objects and activities of the Appellants within the spirit and intendment of the preamble to the Statute of Elizabeth is to find analogous decided cases, I think that there is amply sufficient analogy with the series of cases dealing with burial. I would therefore allow this appeal.

Lord Guest

My Lords,

12

I have had the advantage of reading the speeches of my noble and...

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1 books & journal articles
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    • Journal of Law and Society Nbr. 39-4, December 2012
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