Southwood and Another v HM Attorney General
| Jurisdiction | England & Wales |
| Judgment Date | 28 June 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0628-13 |
| Docket Number | Case No: CHANF 98/1405/CMS3 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 June 2000 |
[2000] EWCA Civ J0628-13
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
(MR JUSTICE CARNWATH)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Kennedy
Lord Justice Chadwick and
Lord Justice May
Case No: CHANF 98/1405/CMS3
DR PETER SOUTHWOOD ( in person for the Appellants)
THE SOLICITOR GENERAL and MR W H HENDERSON (instructed by The Treasury Solicitor for the Respondent)
Chadwick LJ:
This is an appeal against an order made on 9 October 1998 by Mr Justice Carnwath in proceedings brought under section 4(3) of the Charities Act 1993 by way of appeal against the refusal of the Charity Commissioners for England and Wales to enter in the register of charities a trust established under a deed dated 9 June 1994 and therein described as "Project on Demilitarisation". The judge took the view that the purposes for which the trust was established were not charitable in law. Accordingly he upheld the decision of the Charity Commissioners. The issue, on this appeal, is whether the judge was correct in reaching the view that he did.
The declaration of trust dated 9 June 1994 was made by Dr Steven Schofield and Dr Peter Southwood. They were the first trustees. At that time they were part time research fellows attached to the School of Business and Economic Studies at the University of Leeds. Following the decision of the Charity Commissioners to refuse registration, Dr Schofield —who, as the judge noted did not support Dr Southwood's determination to challenge that decision by an appeal to the High Court – resigned as trustee. Mr David Parsons was appointed in his place. Dr Southwood and Mr Parsons are the plaintiffs in these proceedings and the appellants in this Court. Their appeal has been conducted by Dr Southwood in person. As he told the judge, he is pursuing the point as a matter of principle and intends to resign as a trustee once it has been finally determined. It appears that the Project on Demilitarisation (or "Prodem" as it is described by Dr Southwood) is now dormant.
The declaration of trust
The objects of the trust which it was intended to establish by the deed of 9 June 1994 are set out in clause 3 of that deed:
"The trustees shall stand possessed of the Trust Fund and the income thereof UPON TRUST to pay or apply or cause to be paid or applied at such time or times and in such manner as the Trustees shall in their discretion think fit the income and if and in so far as the Trustees shall think fit the capital of the Trust Fund in or towards:
The advancement of the education of the public in the subject of militarism and disarmament and related fields by all charitable means including the promotion improvement and development for the public benefit of research into this subject and the publication of the useful results thereof
The general purposes of such Charitable Bodies or for such other purposes as shall be exclusively charitable as the Trustees shall from time to time decide"
The objects set out in clause 3.1 – as might be expected in professionally drawn document (as this deed was) – are redolent with the flavour of charity. There are references to "the advancement of the education of the public", to "the promotion improvement and development for the public benefit of research", and to the achievement of those ends "by all charitable means". But, as Mr Justice Scott pointed out in Attorney General v Ross [1986] 1 WLR 252, at page 263:
"The skill of Chancery draftsmen is well able to produce a constitution of charitable flavour intended to allow the pursuit of aims of a non-charitable or dubiously charitable flavour."
The requirement of public benefit
The question, which the court must address in each case, is whether the objects to be pursued, although expressed to be of a charitable nature within the spirit and intendment of the preamble to the Statute of Elizabeth (43 Eliz. 1 cp 4), should be recognised as being for the public benefit in the sense in which that concept has come to be understood in the light of the many decisions in this area of the law. It is not enough that the objects should be expressed to be the advancement of education; it is necessary that the advancement of education in the manner intended should promote public benefit. As it was put by Mr Justice Slade, in McGovern v Attorney General [1982] Ch 321, at page 333G-334B:
"Save in the case of gifts to classes of poor persons, a trust must always be shown to promote a public benefit of a nature recognised by the courts as being such if it is to qualify as being charitable. The question whether a purpose will or may operate for the public benefit is to be answered by the court forming an opinion on the evidence before it: see National Ant-Vivisection Society v Inland Revenue Commissioners [1948] 31, 44,per Lord Wright. No doubt in some cases a purpose may be so manifestly beneficial to the public that it would be absurd to call evidence on this point. In many other instances, however, the element of public benefit may be much more debatable. Indeed, in some cases the court will regard this element as incapable of proof one way or the other and thus will inevitably decline to recognise the trust as being of a charitable nature."
In the present case, therefore, the relevant question is whether the "advancement of the education of the public in the subject of militarism and disarmament and related fields" promotes public benefit. If it does, the trust can be recognised as charitable. If it does not – or if, after investigation of the evidence, the court is satisfied that there is no means of determining whether it does or not – the trust cannot be recognised as charitable.
The background material
The declaration of trust, like any other written instrument, must be construed with a proper regard to the circumstances in which it came to be executed. This principle is of no less relevance where (as in the present case) the instrument is the unilateral act of one party (the first trustees) and does not reflect a consensual bargain between parties with different interests. In order to ascertain the nature and scope of the objects which the first trustees intended to promote under the banner of "education … in the subject of militarism and disarmament and related fields" it is necessary to look at the material emanating from them in advance of the execution of the declaration of trust in June 1994.
The objects which became incorporated as clause 3.1 of the declaration of trust as executed first appeared (so far as may be ascertained from the material before the judge) in a draft declaration of trust prepared by Messrs Farrer & Co, solicitors, and sent to the Charity Commission in December 1992. With their letter and the draft document Farrers sent, also, what was described as a "background paper" prepared in October 1992 by Dr Schofield and Dr Southwood. It is, I think, helpful to an understanding of the project which they had in mind to set out a substantial part of that paper:
PROJECT ON DEMILITARISATION
"BACKGROUND
The proposal for a Project on Demilitarisation (PRODEM) was suggested to the Joseph Rowntree Charitable Trust by Steve Schofield and Peter Southwood, who had each obtained their doctorates from Bradford University's Department of Peace Studies for work on arms conversion. They perceived a gap in the disarmament field brought about by an over-emphasis on the undoubted opportunities for change in the post-Cold War era, to the neglect of the structural impediments. Crucial to the success of any disarmament programme was an understanding of the seriousness of those barriers. They argued that the excellent research work being done by various peace research and other bodies could be utilised in a way which more directly addressed this issue.
PURPOSE
PRODEM is an educational body with limited research capacity of its own, placing strong emphasis on utilising available research findings and networking with existing organisations to achieve the most efficient use of resources in dissemination.
The focus of PRODEM is the "new militarism" which is emerging as an integral part of the new world order. By militarism is meant an undue prevalence of warlike values and ideas. This manifests itself in proposals for excessive military forces, judged against any conceivable threat, and a level of military expenditure beyond the requirements for defence.
The term "new militarism" is used to emphasise the greater sophistication of this phenomenon than earlier, cruder versions. There are very great dangers for Britain, and the wider world, if the contentions made by this new form of militarism are not tested against the facts. Its very skilfulness, in the management of public opinion and presentation of aggressive military postures as "defence", may lead eventually to over-confidence and a disastrous miscalculation (as has happened in the past). Over the long term PRODEM hopes to advance public education on militarism and disarmament and also to develop transnational links for education on demilitarisation.
AIMS
The specific aims of the Project on Demilitarisation are:
To fundamentally question the new forms of militarism arising in the West in relation to:
— its recent record;
— current official policies;
— the likely consequences for the future.
To propose alternative policies to achieve disarmament and a
conversion of resources from military to civilian purposes.
METHOD
The instruments for achieving the aims would be three series of closely inter-related briefings, supplemented by...
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