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Cite as: [1980] UKHL 3

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JISCBAILII_CASE_TRUSTS

    Parliamentary Archives,
    HL/PO/JU/18/240

    Die Jovis 6° Martii 1980

    Upon Report from the Appellate Committee to whom
    was referred the Cause Commissioners of Inland
    Revenue and another against McMullen and others,
    That the Committee had heard Counsel as well on
    Monday the 28th as on Tuesday the 29th and Wednesday
    the 30th days of January last upon the Petition and
    Appeal of Arthur Derek McMullen of 37 Halfway
    Avenue, Luton hi the County of Bedford, Professor Sir
    Harold Thompson of St. John's College, Oxford in the
    County of Oxford and Leonard Thomas Shipman of 149
    Main Street, Swithland in the County of Leicester
    praying that the matter of the Order set forth hi the
    Schedule thereto, namely an Order of Her Majesty's
    Court of Appeal of the 18th day of October 1978 might
    be reviewed before Her Majesty the Queen in Her Court
    of Parliament and that the said Order might be reversed,
    varied or altered and that the Petitioners might have the
    relief prayed for in the Appeal or 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 Commissioners of Inland Revenue lodged in
    answer to the said Appeal (in which said Case it was
    stated that Her Majesty's Attorney General, called as
    a Respondent in the said Appeal, was concerned only
    for the protection of the charitable interests arising under
    the trust deed, and did not lodge a separate Case in
    answer thereto); 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 Order of
    Her Majesty's Court of Appeal of the 18th day of
    October 1978 complained of in the said Appeal be, and
    the same is hereby, Set Aside and that it be Declared
    that the objects of the Football Association Youth Trust
    regulated by the Deed dated 30th October 1972 are
    exclusively legally charitable and that the said Trust has
    been properly registered by the Charity Commissioners
    for England and Wales as a charity under section 4 of
    the Charities Act 1960: And it is further Ordered, That
    the Respondent Commissioners of Inland Revenue do
    pay or cause to be paid to the said Appellants and to the
    Respondent Attorney General the Costs incurred by
    them in the Court of Appeal 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 if not agreed between
    the parties: And it is also further Ordered, That the
    Cause be, and the same is hereby, remitted back to the
    Chancery Division of the High Court of Justice to do
    therein as shall be just and consistent with this Judgment.


    HOUSE OF LORDS

    COMMISSIONERS OF INLAND REVENUE
    AND ANOTHER (RESPONDENTS)

    v.
    McMULLEN AND OTHERS (APPELLANTS)

    Lord Hailsham of St. Marylebone (Lord Chancellor)
    Lord Diplock
    Lord Salmon
    Lord Russell of Killowen
    Lord Keith of Kinkel

    Lord Hailsham of St. Marylebone
    (Lord Chancellor)

    MY LORDS,

    By a deed dated the 30th October 1972 between The Football Association
    Ltd. described as " the donor " and three persons named as the Original
    Trustees the donor purported to set up a Trust to be known as The Football
    Association Youth Trust. The sole question for decision in the appeal
    before the House is whether the deed was effective in setting up a valid
    charitable trust. The Charity Commissioners decided that it was so effective,
    overriding the objections of the present Respondents. Walton J. decided
    that it was not, and in his conclusion was supported by a majority (Stamp
    L.J. and Orr L.J.) of the Court of Appeal, who, however, in reaching this
    conclusion, did so for reasons not merely different from but, in some
    respects, diametrically opposed to, the reasons which found favour with
    Walton J. Bridge L.J., dissenting from the majority, supported the view of
    the Charity Commissioners. There is thus ample room for a legitimate
    difference of opinion. Happily, in your Lordships' House, opinion appears
    to be substantially unanimous that the appeal should be allowed.

    Four questions arose for decision below. In the first place neither the
    parties nor the judgments below were in agreement as to the proper
    construction of the trust deed itself. Clearly this is a preliminary debate
    which must be settled before the remaining questions are even capable of
    decision. In the second place the Appellants contend and the Respondents
    dispute, that, on the correct construction of the deed, the trust is charitable
    as being for the advancement of education. Thirdly, the Appellants
    contend and the Respondents dispute that if they are wrong on the second
    question the trust is charitable at least because it falls within the fourth
    class of Lord Macnaghten's categories as enumerated in Income Tax Special
    Purposes Commissioners
    v. Pemsel (1891) AC 531 as a trust beneficial to the
    community within the spirit and intendment of the preamble to the Statute
    43 Eliz. 1 c.4. Fourthly the Appellants contend and the Respondents
    dispute that, even if not otherwise charitable, the trust is a valid charitable
    trust as falling within section 1 of the Recreational Charities Act 1958, that
    is as a trust to provide or to assist in the provision of facilities for recreation
    or other leisure time occupation provided in the interests of social welfare.

    In the events which happened, their Lordships have been greatly assisted
    by helpful arguments from counsel for the Appellants and the Respondents
    and by a valuable contribution from counsel instructed on behalf of the
    Attorney General as guardian of charities. Since we have reached the
    view that the trust is a valid educational charity their Lordships have not
    sought to hear argument nor, therefore, to reach a conclusion on any but
    the first two disputed questions in the dispute. Speaking for myself,
    however, I do not wish my absence of decision on the third or fourth points
    to be interpreted as an indorsement of the majority judgments in the Court
    of Appeal nor as necessarily dissenting from the contrary views contained in
    the minority judgment of Bridge L.J. For me at least the answers to the
    third and fourth questions are still left entirely undecided.

    2

    I now turn to the question of construction, for which it is necessary that
    I reproduce the material portions of the deed:

    The first recital to the deed reads as follows:
    " WHEREAS :-

    "(1) The First Donor is desirous of establishing a charitable trust
    " which would have as the main objects the furtherance of education
    " of Schools and Universities in any part of the United Kingdom
    " encouraging and facilitating the playing of association football or
    " other games and sports at such Schools and Universities and thus
    " assisting to ensure that due attention is given to the physical education
    " and character development of pupils at such Schools and Universities
    " as aforesaid as well as the development and occupation of their minds
    " and the organisation or provision or assistance in the organisation or
    " provision of facilities for physical recreation for young people in the
    " interests of social welfare in any part of the United Kingdom."

    Some reliance was placed on this recital in argument, but, since I do not
    find the remainder of the deed ambiguous I need only say that for the
    purposes of what follows I have drawn no assistance from it.

    The interpretation clause of the deed (clause 1), so far as material, reads
    as follows:

    1. (a) [Defines "the Trust"]
    (b) [Defines " the Trustees "]

    1. " Schools " has the same meaning as in the Education Act 1944

    2. " Universities " means universities, training colleges for teachers,
      or other institutions of further education (including professional
      and technical education approved by the trustees).

    3. [Defines " the Trust Fund "]

    The clause of the deed which is effectively for construction is clause 3,
    which I now reproduce in extenso. It reads :-

    " 3. THE objects of the Trust are : -

    " (a) to organise or provide or assist in the organisation and
    " provision of facilities which will enable and encourage pupils of
    " Schools and Universities in any part of the United Kingdom to
    " play Association Football or other games or sports and thereby to
    " assist in ensuring that due attention is given to the physical
    " education and development of such pupils as well as to the
    " development and occupation of their minds and with a view to
    " furthering this object

    " (i) to provide or assist in the provision of Association Football or
    " games or sports equipment of every kind for the use of such
    " pupils as aforesaid

    " (ii) to provide or assist in the provision of courses lectures
    " demonstrations and coaching for pupils of Schools and
    " Universities in any part of the United Kingdom and for
    " teachers who organise or supervise playing and coaching of
    " Association Football or other games or sports at such Schools
    " and Universities as aforesaid

    " (iii) to promote provide or assist in the promotion and provision
    " of training colleges for the purpose of training teachers in the
    " coaching of Association Football or other games or sports at
    " such Schools and Universities as aforesaid

    " (iv) to lay out manage equip and maintain or assist in the laying
    " out management equipment and maintenance of playing fields
    " or appropriate indoor facilities or accommodation (whether
    " vested in the Trustees or not) to be used for the teaching and
    " playing of Association Football or other sports or games by such
    " pupils as aforesaid

    3

    " (b) to organise or provide or assist in the organisation or
    " provision of facilities for physical recreation in the interests of
    " social welfare in any part of the United Kingdom (with the object
    " of improving the conditions of life for the boys and girls for
    " whom the same are provided) for boys and girls who are under the
    " age of twenty-one years and who by reason of their youth or social
    " and economic circumstances have need of such facilities ".

    I pause here only to say that no question arises as to clause 3(b) above
    which clearly corresponds to the language of the Recreational Charities Act
    1958. Controversy therefore revolves solely around 3(a), since it is obvious
    that, if this cannot be shown to be solely for charitable purposes, the whole
    trust ceases to be a charitable trust. Walton J., adopting for this purpose
    the construction propounded for the Respondents, construed the words
    between " thereby " and " object" where they occur in clause 3(a) of the
    deed as if they " only express the draftsman's erroneous view of the effect of
    " the earlier part of clause 3(a), and cannot control the operation of that
    " part." ([1978] 1 W.L.R. at p.673). Stamp L.J. appears, though not quite
    unequivocally, to differ. After reciting Walton J's. view, he said ([1979] 1
    W.L.R. at p. 134):

    " In my view, however, the proper approach to the construction of
    " paragraph (a) is to construe ' physical education and development'.
    " which I find an elusive phrase, as connoting something which the
    " playing of association football will assist in ensuring ".

    And on the following page:

    " But in relation to association football the settlor has made it clear
    " that, for the purposes of the trust, facilities which do enable and
    " encourage pupils to play that game are to be regarded as ' thereby '
    " assisting in ensuring that due attention is given to their physical
    " education and development ".

    Orr L.J. claimed (p. 138) to prefer the view of Stamp L.J. by saying that the
    proper approach to the words in question is to construe " physical education
    " and development" as " denoting something which the playing of
    " association football will assist in ensuring, with the result that the trust
    " has the single object of physical education and development of the
    " pupils ".

    In his dissenting judgment Bridge L.J. at p.140 took a view fundamentally
    differing from any of the above. Since I agree with it entirely. I quote the
    entire passage:

    "... For convenience of reference I set out the words of the clause
    " which define the object divided into two parts: The first part is:

    " '. . . to organise or provide or assist in the organisation and
    " ' provision of facilities which will enable and encourage pupils of
    " ' schools and universities in any part of the United Kingdom to
    " ' play association football or other games or sports . . .'

    " The second part is:

    " ' and thereby to assist in ensuring that due attention is given to the
    " ' physical education and development of such pupils as well as to
    " ' the development and occupation of their minds . . .'

    " The ensuing words ' and with a view to furthering this object' must
    " refer back to both the first and second parts envisaged as defining a
    " composite object to which all that follows in sub-paragraphs (i) to (iv)
    " is subordinate. The judge, apparently confining his attention to the
    " first part, declared that this was ' on its face, simply a trust to promote
    " 'the playing of games,' see [1978] 1 W.L.R. 664, 670. He later
    " explained, at p.673. his disregard of the second part as based on
    " acceptance of the submission that it only expresses ' the draftsman's
    "' erroneous view of the effect of the [first] part ... and cannot
    "' control the operation of that part.' With all respect to the judge, I

    4

    " am quite unable to accept this approach. I know of no canon of
    " construction whereby one part of a document, being in no way
    " repugnant, can be thus dismissed as expressing a mistaken inter-
    " pretation by the draftsman himself of what he intended by some other
    " part. All parts of a document must be read as conveying the totality
    " of the draftsman's intention and so far as possible harmonised on the
    " premise that each part was included as having some positive role to
    " play in expressing that intention. Applying these principles I can
    " see no difficulty in harmonising the two parts of clause 3(a) or in
    " assigning to both a significant effect in denoting the object which this
    " clause empowers the trustees to promote. The first part of the clause
    " places no limitation on the kind of games or sports which are to be
    " facilitated and encouraged and if it stood alone, would include purely
    " sedentary games. But the second part makes clear that it is only such
    " games or sports as are capable of promoting physical education or
    " development as are intended. This is an obvious and simple
    " demonstration of the necessity for giving some effect to the second part
    " of the clause in controlling the operation of the first part. I see no
    " reason, however, why it should not be construed as indicating to
    " the trustees not only the nature of the games or sports which they are
    " to encourage but also the wider considerations they must keep in
    " mind in deciding whether or not in any particular circumstances it is
    " appropriate that particular sporting facilities should be provided at the
    " expense of the trust."

    I agree with this opinion, and, as I understand them, also with the
    summaries of it propounded by my noble and learned friends Lords Keith
    of Kinkel and Russell of Killowen to the effect that what the deed means
    is that the purpose of the settlor is to promote the physical education and
    development of pupils at schools and universities as an addition to such
    part of their education as relates to their mental education by providing the
    facilities and assistance to games and sports in the manner set out at
    greater length and in greater detail in the enumerated subclauses of clause
    3(a) of the deed.

    By one passage in the reasoning of Bridge L.J. which I have set out
    above, I have been particularly assisted to my conclusion on the point of
    construction. This was pointed out in the course of an argument advanced
    by counsel for the appellant in his reply. One thing which was conceded on
    both sides about the construction of the deed was that it could not apply
    to sedentary games like chess or games of cards. That this is so is apparent
    from the whole clause of the deed, but the restrictive sense admitted to be
    its meaning could not be applied to what has been called the first part of
    the clause unless to the words between '" thereby " and " object" are given
    a sense controlling and limiting the first part as well as the second part
    of the clause in the manner contended for by the appellants. The word
    " thereby " cannot therefore bear the purely consequential meaning assigned
    to it by the three judgments appealed from and must bear the controlling
    and purposive or final (in the sense in which it is used in Latin syntax)
    meaning contended for by the appellants and supported by Bridge L.J. In
    short, in the context, the words " and thereby " bear, and can only bear, a
    meaning something like " in such a way as to" and not the meaning
    attributed to it on behalf of the respondents as reflecting, whether
    erroneously on the part of the draftsman (as per Walton J. supra) or correctly
    or incorrectly in the mind of the settlor (as per Stamp and Orr L.JJ. supra)
    the results automatically effected by the first part of the deed. Moreover,
    if this were not enough, I find the word " object" in the singular at the
    end of the phrase far more consistent with this view than with the other.

    On a proper analysis, therefore, I do not find clause 3(a) ambiguous.
    But, before I part with the question of construction. I would wish to express
    agreement with a contention made on behalf of the appellants and of the
    Attorney General, but not agreed to on behalf of the Respondents, that in
    construing trust deeds the intention of which is to set up a charitable trust,
    and in others too, where it can be claimed that there is an ambiguity, a

    5

    benignant construction should be given if possible. This was the maxim
    of the civil law (Dig:Lib:Tit: xvii S.56) "Semper in dubiis benigniora
    " proeferenda sunt". There is a similar maxim in English law: " ut res
    " magis valeat quam pereat ". It certainly applies to charities when the
    question is one of uncertainty. (Weir v. Crum-Brown [1908] AC 162, 167)
    and, I think, also where a gift is capable of two constructions one of which
    would make it void and the other effectual (c.f. Bruce v. The Presbytery of
    Deer
    (1867) L.R. 1 H.L. Sc. 96, 97; Houston v. Burns [1918] A.C. 337 at
    341,2 per Finlay L.C. and c.f. also In re Bain, Public Trustee v. Ross [1930]
    1 Ch. 224 at 230). In the present case I do not find it necessary to resort
    to benignancy in order to construe the clause, but, had I been in doubt,
    I would certainly have been prepared to do so.

    The views of the trial judge and of the Court of Appeal on the remaining
    questions were obviously coloured largely by their construction of the deed
    from which I have found it necessary to differ. So is my own, and I must
    now turn to the deed, construed in the manner in which I have found it
    necessary to construe it, to consider whether it sets up a valid charitable
    trust for the advancement of education.

    It is admitted, of course, that the words " charity " and " charitable " bear,
    for the purposes of English law and equity, meanings totally different from
    the senses in which they are used in ordinary educated speech or, for instance,
    in the Authorised Version of the Bible (contrast, for instance, the
    expression " Cold as Charity " with the Authorised Version of 1 Cor. xiii
    and both of these with the decisions in Incorporated Council of Law
    Reporting for England and Wales
    v. Attorney General [1972] Ch 73; I.R.C.
    v. Yorkshire Agricultural Society [1928] 1 K.B. 611; Brisbane City Council
    v. A-G. for Queensland [1979] AC 411). But I do not share the view,
    implied by Stamp L.J. and Orr L.J. in the instant case ([1979] 1 W.L.R.
    at p. 135; ibid., at p. 139) that the words "education" and "educational"
    bear, or can bear, for the purposes of the law of charity, meanings different
    from those current in present day educated English speech. I do not believe
    that there is such a difference. What has to be remembered, however, is
    that, as Lord Wilberforce pointed out in In re Hopkins [1965] Ch. 669,
    678, esp. at 686, and in Scottish Burial Reform and Cremation Society Ltd.
    v. Glasgow Corporation [1968] AC 138, esp. at p.154, both the legal
    conception of charity, and within it the educated man's ideas about
    education are not static, but moving and changing. Both change with
    changes in ideas about social values. Both have evolved with the years.
    In particular in applying the law to contemporary circumstances it is
    extremely dangerous to forget that thoughts concerning the scope and width
    of education differed in the past greatly from those which are now generally
    accepted.

    In saying this I do not in the least wish to cast doubt on the case of In re
    Nottage
    [1895] 2 Ch. 649, which was referred to in both courts below and
    largely relied on by the Respondents here. Strictly speaking In re Nottage
    was not a case about education at all. The issue there was whether the
    bequest came into the fourth class of charity categorised in the Lord
    Macnaghten's classification of 1891. The mere playing of games or
    enjoyment of amusement or competition is not per se charitable, nor
    necessarily educational, though they may (or may not) have an educational
    or beneficial effect if diligently practised. Neither am I deciding in the
    present case even that a gift for physical education per se and not associated
    with persons of school age or just above would necessarily be a good
    charitable gift. That is a question which the courts may have to face at
    some time in the future. But in deciding what is or is not an educational
    purpose for the young in 1980 it is not irrelevant to point out what
    Parliament considered to be educational for the young in 1944 when, by the
    Education Act of that year in sections 7 and 53, (which are still on the
    Statute Book) Parliament attempted to lay down what was then intended
    to be the statutory system of education organised by the State, and the duties
    of the local education authorities and the Minister in establishing and

    6

    maintaining the system. Those sections are so germane to the present
    issue that I cannot forbear to quote them both. Section 7 provides (in
    each of the sections the emphasis being mine):

    " 7. The statutory system of public education shall be organised in
    " three progressive stages to be known as primary education, secondary
    " education, and further education; and it shall be the duty of the
    " local education authority for every area, so far as their powers extend,
    " to contribute towards the spiritual, moral, mental, and physical
    " development of the community by securing that efficient education
    " throughout those stages shall be available to meet the needs of the
    " population of their area."

    and in section 53(1) and (2) of the same Act it is said:

    "53.—d) It shall be the duty of every local education authority
    " to secure that the facilities for primary secondary and further education
    " provided for their area include adequate facilities for recreation and
    " social and physical training,
    and for that purpose a local education
    " authority, with the approval of the Minister, may establish, maintain
    " and manage, or assist the establishment, maintenance, and manage-
    " ment of camps, holiday classes, playing fields, play centres, and other
    " places (including playgrounds, gymnasiums, and swimming baths
    " not appropriated to any school or college), at which facilities for
    " recreation and for such training as aforesaid are available for persons
    " for whom primary secondary or further education is provided by the
    " authority, and may organise games, expeditions and other activities
    " for such persons, and may defray or contribute towards the expenses
    " thereof.

    " (2) A local education authority, in making arrangements for the
    " provision of facilities or the organisation of activities under the
    " powers conferred on them by the last foregoing subsection shall, in
    " particular, have regard to the expediency of co-operating with any
    " voluntary societies or bodies whose objects include the provision of
    " facilities or the organisation of activities of a similar character."

    There is no trace in these sections of an idea of education limited to the
    development of mental vocational or practical skills, to grounds or facilities
    the special perquisite of particular schools, or of any schools or colleges, or
    term time, or particular localities, and there is express recognition of the
    contribution which extra-curricular activities and voluntary societies or
    bodies can play even in the promotion of the purely statutory system
    envisaged by the Act. In the light of section 7 in particular I would be very
    reluctant to confine the meaning of education to formal instruction in the
    classroom or even the playground, and I consider them sufficiently wide to
    cover all the activities envisaged by the settlor in the present case. One of
    the affidavits riled on the part of the respondent referred to the practices
    of ancient Sparta. I am not sure that this particular precedent is an entirely
    happy one, but from a careful perusal of Plato's Republic I doubt whether
    its author would have agreed with Stamp L.J. in regarding " physical
    " education and development" as an elusive phrase, or as other than an
    educational charity, at least when used in association with the formal
    education of the young during the period when they are pupils of schools
    or in statu pupillari at universities.

    It is, of course, true that no authority exactly in point could be found
    which is binding on your Lordships in the instant appeal. Nevertheless, I
    find the first instance case of In re Mariette [1915] 2 Ch. 284, a decision of
    Eve J., both stimulating and instructive. Counsel for the Respondents
    properly reminded us that this concerned a bequest effectively tied to a
    particular institution. Nevertheless, I cannot forbear to quote a phrase from
    the judgment, always bearing in mind the danger of quoting out of context
    Eve J. said (at p.288):

    " No one of sense could be found to suggest that between those
    " ages (10-19) any boy can be properly educated unless at least as
    " much attention is given to the development of his body as is given
    " to the development of his mind ".


    7

    Apart from the limitation to the particular institution I would think that
    these words apply as well to the Settlor's intention in the instant appeal as
    to the Testator's in In re Mariette, and I regard the limitation to the pupils
    of schools and universities in the instant case as a sufficient association with
    the provision of formal education to prevent any danger of vagueness in the
    object of the trust or irresponsibility or capriciousness in application by the
    trustees. I am far from suggesting either that the concept of education
    or of physical education even for the young is capable of indefinite extension.
    On the contrary. I do not think that the courts have as yet explored the
    extent to which elements of organisation, instruction, or the disciplined
    inculcation of information instruction or skill may limit the whole concept
    of education. I believe that in some ways it will prove more extensive, in
    others more restrictive than has been thought hitherto. But it is clear
    at least to me that the decision in In re Mariette supra is not to be read in
    a sense which confines its application for ever to gifts to a particular
    institution. It has been extended already in In re Mellody [1918] 1 Ch. 228
    to gifts for annual treats for schoolchildren in a particular locality (another
    decision of Eve J.), to playgrounds for children (In re Chesters (1934)
    unreported, and possibly not educational, but referred to in I.R.C. v.
    Baddeley
    [1955] A.C. at 596; to a children's outing (In re Ward (1937) 81
    S.J. 397); to a prize for chess to boys and young men resident in the City of
    Portsmouth (In re Dupree [1945] Ch.16 (a decision of Vaisey J.) and for
    the furthering of the Boy Scouts' movement by helping to purchase sites
    for camping, outfits, etc. (In re Webber [1954] 1 W.L.R. 1500, another
    decision of Vaisey J.). In that case Vaisey J. is reported as saying at
    p. 1501:

    " I am bound to say that I am surprised to hear that anyone
    " suggests that the Boy Scouts' movement, as distinguished from the
    " Boy Scouts' association, or the Boy Scouts' organisation, or any
    " other form of words, is other than an educational charity. I should
    " have thought that it was well settled and well understood that the
    " objects of the organisation of Boy Scouts is an education of a very
    " special kind, no doubt, but still nonetheless, educational ".

    It is important to remember that in the instant appeal we are dealing with
    the concept of physical education and development of the young deliberately
    associated by the settlor with the status of pupillage in schools or universities
    (of which, according to the evidence, about 95 per cent are within the age
    group 17-22). We are not dealing with adult education, physical or otherwise,
    as to which some considerations may be different. Whether one looks at the
    statute or the cases, the picture of education when applied to the young which
    emerges is complex and varied, but not, to borrow Stamp L.J.'s epithet
    " elusive". It is the picture of a balanced and systematic process of
    instruction, training and practice containing, to borrow from section 7 of the
    Act of 1944, both spiritual, moral, mental and physical elements, the totality
    of which, in any given case may vary with, for instance, the availability of
    teachers and facilities, and the potentialities, limitations and individual
    preferences of the pupils. But the totality of the process consists as much
    in the balance between each of the elements as of the enumeration of the
    things learned or the places in which the activities are carried on. I reject
    any idea which would cramp the education of the young within the school
    or university syllabus, confine it within the school or university campus, limit
    it to formal instruction, or render it devoid of pleasure in the exercise of
    skill. It is expressly acknowledged to be a subject in which the voluntary
    donor can exercise his generosity, and I can find nothing contrary to the
    law of charity, which prevents a donor providing a trust which is designed
    to improve the balance between the various elements which go into the
    education of the young. That is what in my view the object of the instant
    settlement seeks to do.

    I am at pains to disclaim the view that the conception of this evolving, and
    therefore not static, view of education is capable of infinite abuse or, even
    worse, proving void for uncertainty. Quite apart from the doctrine of the
    benignant approach to which I have already referred, and which undoubtedly

    8

    comes to the assistance of settlors in danger of attack for uncertainty, I am
    content to adopt the approach of my predecessor Lord Loreburn L.C. in
    Weir v. Crum-Brown & Ors. [1908] AC 162, to which attention was drawn
    by counsel for the Attorney General, especially at p.167, that if the bequest
    to a class of persons, as here capable of application by the trustees, or.
    failing them, the court, the gift is not void for uncertainty. At p.169 Lord
    Macnaghten also said:

    " The testator has taken pains to provide competent judges. It is for
    " the trustees to consider and determine the value of the service on which
    " a candidate may rest his claim to participate in the testator's bounty ".

    Mutatis mutandis, I think this kind of reasoning should apply here. Granted
    that the question of application may present difficulties for the trustees, or,
    failing them, for the court, nevertheless it is capable of being applied, for
    the concept in the mind of the settlor is an object sufficiently clear, is
    exclusively for the advancement of education, and, in the hands of competent
    judges is capable of application.

    I also wish to be on my guard against the " slippery slope " argument of
    which I see a reflexion in Stamp L.J.'s reference to " hunting, shooting and
    " fishing ". It seems to me that is an argument with which Vaisey J. dealt
    effectively in In re Dupree (supra) in which he validated the chess prize. He
    said, at p.20:

    " I think that the case before me may be a little near the line, and
    " I decide it without attempting to lay down any general propositions.
    " One feels, perhaps, that one is on rather a slippery slope. If chess,
    " why not draughts? If draughts, why not bezique, and so on, through
    " to bridge and whist, and, by another route, to stamp collecting and the
    " acquisition of birds' eggs? Those pursuits will have to be dealt with
    " if and when they come up for consideration in connexion with the
    " problem whether or no there is in existence an educational charitable
    " trust."

    My Lords, for these reasons I reach the conclusion that the trust is a valid
    charitable gift for the advancement of education, which, after all, is what it
    claims to be. The conclusion follows that the appeal should be allowed, the
    judgments appealed from be reversed, the order for registration made by
    the Commissioners restored, and that costs here and in the Court of Appeal
    should follow the event. Costs before Walton J. were the subject of an
    agreement between the parties. The Attorney General asked for his costs
    against the Respondents in the event of their failure and in my opinion is
    also entitled to an order for these
    .

    Lord Diplock

    MY LORDS,

    I have had the advantage of reading in draft the speech prepared by my
    noble and learned friend on the Woolsack, and I agree with it. For the
    reasons given by him I would allow the appeal.

    Lord Salmon

    MY LORDS,

    I, too, agree with the speech of my noble and learned friend on the
    Woolsack and, for the reasons which he states, I would allow the appeal.

    Lord Russell of Killowen

    my lords,

    The ground in this appeal has been so amply covered in the speech of my
    noble and learned friend the Lord Chancellor that I can be brief.

    9

    The question is whether the trusts of the deed, in particular of clause 3(a),
    are exclusively for charitable purposes as being for the promotion of
    education. (I expressly say nothing one way or the other on the questions
    which, if the answer is in the affirmative, do not arise: namely under the
    fourth of Lord Macnaghten's categories, and under section 1 of the
    Recreational Charities Act 1958.)

    I cannot accept the approach to construction of clause 3 (a) which jettisons
    the second part of the first sentence (" and thereby ") as being no more than
    the draftsman's idea of the outcome or possible outcome of the provision
    of facilities under the first part. As has been pointed out the second part
    has at least the operative function of demonstrating that " games " does not
    include sedentary pastimes. In my opinion in deciding whether the clause
    demonstrates that the purpose of the Deed is the promotion of education the
    clause must be considered so to speak " in the round ", with all parts
    contributing to the decision. Those persons who are intended to be benefited
    are all pupils undergoing a formal course of education in the narrower sense
    of that word. I would construe the stated object of the trust as being to
    promote the physical education and development of pupils as supplementary
    to the provision made for them by those formal courses for their mental
    development and occupation by providing facilities to enable and encourage
    them to play football and other games and sports. The four sub-paragraphs
    of clause 3(a) do not depart from this concept: they are alt provisions
    expressed to be with a view to furthering it: sub-paragraph (i) provides for
    the provision of relevant equipment for the use of such pupils: sub-paragraph
    (ii) deals with the provision of courses, lectures, demonstrations and coaching
    (clearly in the relevant field) for such pupils, and also for teachers who
    organise or supervise playing of the relevant games as sports at such schools
    and universities, the benefit in such latter cases to the pupils being at one
    remove: sub-paragraph (iii) relates to the provision of training colleges to
    train such last-mentioned teachers: sub-paragraph (iv) relates to the provision
    etc. of outdoor or indoor facilities to be used for such teaching of and playing
    by such pupils. I have summarized those sub-paragraphs, but not, I consider,
    so as to depart from their fair construction.

    I appreciate that the present trust is different from instances (in the cases)
    in which provision is made by the provision of facilities etc. for the
    encouragement of sports at a particular school or other educational establish-
    ment, where their supervision is under the direct control of the body there
    responsible for the formal education in the narrower sense of the pupils, and
    where the facilities are for use during educational terms. But suppose an
    area containing three schools, short of space for (for example) the physical
    exercise involved in playing football; suppose the provision by this trust of
    a field equipped for that purpose, for the use only of pupils of such schools,
    under the management and control of an appointee of the trustees; that would
    not in my opinion deny to the trust a sufficient nexus with the education
    (in the narrower sense) of those pupils to qualify the trust as one of which
    the purpose is the promotion of education. Nor so if the facility was available
    to those pupils out of term time.

    The crux of the decision of the majority in the Court of Appeal appears
    to be (a) the assertion that the promotion of physical education and develop-
    ment by the encouragement of the playing of games and sports is not a
    charitable purpose and (b) it is not converted to a charitable purpose by
    limiting the objects of the trust to those who happen to be pupils of schools
    and universities. I reserve my view on the first assertion; but in my opinion
    the second does a good deal less than justice to current views on the value
    of what is proposed as a contribution to the total concept of education of
    the young. I find myself in sympathy with the views expressed by Bridge L.J.,
    fully quoted by my noble and learned friend on the Woolsack.

    In my opinion this appeal should be allowed on the ground that this trust
    is established for charitable purposes only, the promotion of education.

    10

    Lord Keith of Kinkel


    my lords,

    I have had the advantage of reading in draft the speech of my noble and
    learned friend the Lord Chancellor, and I agree with it.

    In my opinion there are only two points in this appeal which require to
    be considered and resolved in order to arrive at the correct disposal of it.

    The first point is concerned with the true construction and effect of the
    second branch of clause 3(a) of the Trust Deed, which opens with the words
    " and thereby ". It was argued for the respondents that this did no more
    than express an erroneous view on the part of the draftsman as to the
    consequences of organising or providing sporting facilities such as are
    described in the earlier part of the clause. This argument I cannot accept.
    In the first place the words must surely be read, if such a reading is reasonably
    open, as intended to have some operative effect, rather than as being mere
    surplusage. It was conceded that the words must have at least some effect,
    by excluding sedentary games from the category of those for which facilities
    might lawfully be provided under the first part of the clause. I consider it
    to be a correct conclusion, taking the words in their context, that they
    are intended to express the main abstract purpose of the deed, namely
    that of securing that due attention is given to the physical education and
    development of pupils at schools and universities in the United Kingdom.

    The second point is whether a trust having this object is properly to be
    regarded as constituted for exclusively charitable purposes as being one for
    the advancement of education. A trust for the mere promotion of a particular
    sport or sports does not qualify as charitable under this head (In re Nottage
    [1895] 2 Ch. 649). On the other hand a gift to a particular educational establish-
    ment for the purpose of improving the sporting facilities available to the pupils
    there does so qualify : (In re Mariette [1915] 2 Ch. 284). In the present case the
    purpose of the trust is plainly to improve the sporting facilities, particularly
    as regards the playing of Association Football, available to pupils undergoing
    formal courses of education at schools and universities in the United Kingdom.
    It has long been recognized that the provision of such facilities tends to
    promote the success of formal education processes with which it is associated.
    In my opinion the link which by this Trust Deed is required to be established
    between the facilities to be provided and persons undergoing courses of
    formal education at schools and universities must necessarily lead to the
    conclusion that the trust is for the promotion of education, and that its
    purposes are therefore exclusively charitable.

    In the circumstances it is unnecessary to consider whether the trust is apt
    to qualify as charitable under the fourth category in Pemsel's case [1891]
    A.C. 531, or under the Recreational Charities Act 1958, and I reserve my
    opinion on these matters.

    My Lords, I would allow the appeal.

    312267 Dd 0541790 290 3/80


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