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As ‘cold as charity’? : poverty, equity and the charitable trust

  • Alison Dunn (a1)
Abstract

It has often been assumed that the notion of altruism indicative in the ordinary use of the term ‘charity’ penetrates the rationale for equity's enforcement of charitable trusts for the relief of the poor. This article questions whether in the area of poor relief equity acts out of a humanitarian regard for those whose relief is the purpose of the trust, or whether there is a more pragmatic rationale for action. Examination through case law of equity's reasoning is placed against a backdrop of socio-historical development, and of present day political concerns with resource allocation and professional accountability. This article concludes that whilst the potential for humanitarian relief in charitable trusts for the poor is clear, the operation of equity's jurisdiction in this area has a more prosaic disposition, placing poverty within the practical context of broader economic, social, commercial and industrial political policies.

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1. The English law of charity is thought to have been based upon its Roman counterpart, which was in place as early as the fourth century: see C Rickett ‘Charitable Giving in English and Roman Law: A Comparison of Method’ (1979) 38 CLJ 118.

2. Chantry revenues were for masses to be said for the repose of souls. Funeral alms consisted of a monetary distribution at the donor's funeral to poor mourners to secure their prayers. Prayer candles had a similar purpose.

3. The emphasis upon prayer and ‘good works’ for the salvation of the soul enabled donors to give freely to the Church. This form of charity transcended all aspects of daily life, even pervading the world of commerce. In the thirteenth–fourteenth centuries, a practice developed of providing a small sum in addition to the purchase price for goods - known generally as ‘God's Penny’ - the purpose of which was the application of it by the vendor to pious uses: D Ibbetson ‘From Property to Contract: The Transformation of Sale in the Middle Ages’ (1992) 13 J Legal History I at 8.

4. Hen VIII 1545. See now Re Hetherington (dec'd) (1990) 1 Ch 1.

5. Henry VIII's actions, in fact, made an important transition from Church to state responsibility for the relief of poverty.

6. The change in emphasis was two fold. First, there was a concern to ensure that physical rather than spiritual poverty was countered. Secondly, there was a greater emphasis upon systematically directing charitable giving to the relief of poverty.

7. See Re Wall (1889) 42 Ch D 510.

8. Discussed by G Jones History of the Law of Charity 1532-1827 (Cambridge: Cambridge University Press, 1969) pp 107–119. The Mortmain and Charitable Uses Act 1888 repealed and re-enacted the Mortmain laws, but they were eventually abolished by s 38 of the Charities Act 1960.

9. Under the Military Tenures Abolition Act 1660.

10. A statute enacted by Henry VIII (23 Hen VIII c 10) made gifts to unincorporated associations, which escaped feudal dues, void where they lasted greater than 20 years: for discussion see C Stebbings ‘Charity Land: A Mortmain Confusion’ (1991) 12 J Legal History 7.

11. As Hardwicke LC commented in A-G v Day (1748-1749) 1 Ves Sen 218, 223: ‘The particular views of the legislature were two: first to prevent the locking up of land and real property from being aliened… and second, to prevent persons in their last moments from being imposed on to give away their real estates from their families.’ See also C Stebbings, above n 10; M Chesterman Charities, Trusts and Social Welfare (London: Weidenfeld & Nicolson, 1979) p 37.

12. See Lord Herschell in Commissioners for Special Purposes of Income Tax v Pemsel (1891) AC 531 at 572–573; I Bradley The Call To Seriousness: The Evangelical Impact on the Victorians (London: J. Cape, 1976) pp 119–134; W Beveridge Voluntary Action: A Report on Methods of Social Advance (London: Allen & Unwin, 1948) pp 362–363.

13. Per Lord Cross of Chelsea in Dingle v Turner (1972) AC 601 at 624. Taxation exemptions were in effect as early as 1572, with the first Income Tax Act providing exemptions appearing in 1799: Chesterman, above n 11 at 23.

14. Such as exemption from income or corporation tax on a charity's income; exemption from tax on capital gains; local taxation relief at 80% of non-domestic rate. Relief for donors which can also aid charities include enabling charities to recoup tax on covenanted sums over four years; no inheritance tax on charitable legacies; and millennium gift aid, see below n 87.

15. The Law Lords in Dingle v Turner (1972) AC 601 were divided upon this point. See also Lords Bramwell and Macnaghten in Commissioners for Special Purposes of Income Tax v Pemsel (hereafter Pemsel) (1891) AC 53 1 at 566 and 591; and Radcliffe Commission Final Report on Taxation of Profits and Income (Cmnd 9474) (1955).

16. Review of Charity Taxation HM Treasury Consultation Document 1999, para 1.4 In some respects this figure is misleading. If charities were fixed with taxation liability it would not mean a net saving of £2bn to the Revenue, since the government would be charged with having to provide for those people who would otherwise have fallen upon charitable provision.

17. In March 1999 the Treasury issued a consultation document, above n 16. This document does not advocate abolishing the taxation exemptions, rather modernising the system so that it is fair, simple and transparent for charities (para 1.2), and which also creates ‘a dynamic environment’ to encourage giving (para 1.9).

18. According to Charity Commission figures, during 1998, 8,776 applications were made for charitable status and of those 6,200 were added to the register, giving a total of 186,248 registered charities. Their annual income is approximately E19.7bn: Charity Commission The Work of the Charity Commission for England and Wales in 1998 Leaflet CC10 (London: TSO, 1999). Despite the increase in charitable organisations, social attitude towards charity has markedly changed over the last decade or so: see B Knight Voluntary Action (London: Home Office, 1993) pp 33–52.

19. For a summary of cases relating to the relief of poverty up to 1888, see A D Tyssen The Law of Charitable Bequests, with an Account of The Mortmain and Charitable Uses Act 1888 (London, Clowes, 1888) pp 140–150.

20. See below text to n 29.

21. See eg Re Cottam (1955) WLR 1229: ‘It seems to me plain that the testator had in mind a class of persons of small means’; Re Roadley (1920) 1 Ch 524: ‘The conclusion that it was the intention of the testator that the gift should be for the benefit of poor persons is to be inferred’; and Re Lucas (1922) 2 Ch 52: ‘But if you construe the gift in such a way as to hold that the testator meant.’

22. It is often difficult to separate a genuine care for the disadvantaged from seeking the soul's salvation; as Blakeney points out, in earlier times there was a Papal decree advocating salvation through charity: M Blakeney ‘Sequestered Piety and Charity - A Comparative Analysis’ (1981) 2 J Legal History 201 at 208. Perhaps there was also a motive in turbulent times to ensure social or political allegiance from poor beneficiaries: Rickett, above n 1 at 131.

23. Pemsel (1891) AC 531 at 583. Whilst charitable purposes are not strictly defined allowing for a degree of flexibility, the judiciary are chary of extending the boundary of charity beyond acceptable limits. See Vaisey J in Re Hillier (1944) 1 All ER 480 at 481; Re Dudgeon (1896) 74 LT 613.

24. As demonstrated in Re Delaney (1902) 2 Ch 642, there are no distinctions within the case law regarding the consequences of different motives. The court is not concerned with whether donors genuinely wished to relieve poverty, sought eternal sanctuary, desired posthumous immortality, or prevent their next of kin benefiting from their estate. See also Lord Northington in A-G v Tyndall (1764) Amb 614 at 616, A-G v Day (1748-1749) 1 Ves Sen 218 at 223; Re Campden Charities (1881) 18 Ch D 3 10 at 324 and 327; Jarvis’ Charity noted in Beveridge, above n 12, p 366, and, in a more modem context, Lawrence W in Keren Kayemeth Le Jisroel Ltd v IRC (1931) 2 KB 465 at 484.

25. Generally, the criteria are threefold: does the trust fall within the spirit and intendment of the preamble to the Statute of Elizabeth 1601, as amended; does it benefit the public or a significant cross section thereof; and is it wholly and exclusively charitable? Further, where the court is called upon to decide if the cy-près doctrine is applicable, and examines whether the testator displayed a general charitable intention, the charitable nature of that intention is still governed by objective criteria: Charities Act 1993, s 13.

26. That is, whether it falls within the four heads of Pemsel, or within the spirit and intendment of the Preamble to the Act of Charitable Uses 1601.

27. Irrespective of the donor's intentions, trusts contrary to morality, public policy or law or which are capricious will not be valid: for example Brown v Burdett (1882) 21 Ch D 667.

28. See discussion of the term by the House of Lords in Pemsel.

29. G Spence The Equitable Jurisdiction of the Court of Chancery (London: Stevens & Norton, 1846) p 387.

30. As Peter Gibson J pointed out in Joseph Rowntree Memorial Housing Association Ltd v A-C (1983) 1 Ch 159 at 171: ‘the word “relief” is not synonymous with “benefit”.’ See also The Fair trade Foundation (1995) 4 Decisions of the Charity Commissioners 1; Re Mead's Trust Deed (1961) 2 All ER 836; Re Gwyon (1930) 1 Ch 255.

31. (1854) 2 Sim & ST 93 at 94. Followed by Thompson v Corby (1860) 27 Beav 649; Re Dudgeon (1896) 74 LT 613.

32. Eg Re Elliot (1910) 102 LT 528.

33. (1922) 2 Ch 52. This case involved a bequest of five shillings per week to ‘the oldest respectable inhabitants’ of a particular locality. Whilst Russell J initially felt that the wording was insufficient to validate the trust, after reflecting upon Thompson v Corby (1860) 27 Beav 649; Re Wall (1889) 42 CD 5 10; Re Gosling (1900) 48 WR 300 and Re Dudgeon (1896) 74 LT 613, he held that the low amount of the weekly sum, alongside the use of the term ‘oldest’, implied poverty.

34. (1922) 2 Ch 52 at 59. C. f. Re Lewis (dec'd) (1955) 1 Ch 104.

35. (1950) 2 All ER 1150.

36. A gift to the working classes alone would not impute poverty: Re Sanders Will Trusts (1954) Ch 265. Gifts for the aged do not have to involve the aged poor in order to be valid Re Lucas (1922) 2 Ch 52; Re Robinson (1950) 2 All ER 1 148; Re Cottam's Will Trusts (1955) 3 All ER 704; Re Neal (1966) 110 SJ 549; Joseph Rowntree Memorial Housing Association v A-G (1983) 1 Ch 159.

37. (1896) 74 LT 613.

38. See further below text to n 117.

39. Re Scarisbrick (1951) Ch 622, per Jenkins LJ, approved by Lord Cross in Dingle v Turner (1972) AC 601; applied in Re Cohen (1973) 1 All ER 889.

40. In Re Coulthurst (1951) Ch 661 at 665-666, ‘poverty’ was defined as ‘going short’ . See also Re Gardom (1914) 1 Ch 662 at 667; R v Liverpool CC, ex p Windsor Securities Ltd (1979) RA 159 at 178, which defined poverty as ‘some difficulty in meeting the conventional necessities of life’ . A-G v Duke of Northumberland (1877) 7 Ch D 745 emphasised that a gift to the poorest of a defined class would only be valid where it relieved actual poverty.

41. (1996) Ch 171.

42. Ibid at 190.

43. Charity Commission Charities for the Relief of the Poor Leaflet CC4 (London: TSO, 1995) para 8.

44. The court has an inherent power to alter the administration of charitable trusts: Re J W Laing Trusts (1984) Ch 143. The Charity Commissioners have power under the Charities Act 1993, s 16. Special powers of alteration for charities whose gross income is £5,000 or below are provided in the Charities Act 1993, ss 74–75.

45. (1881) 18 Ch D 310 at 326.

46. It is often difficult to assess how effective a trust will be in relieving poverty when it is accorded charitable status. Since inefficient trusts may not alleviate poverty, it is important for the court to pay attention to trust administration. On inefficiency, see W Beveridge, above n 12, Appendix B; A Hobhouse The Dead Hand (London: Chatto & Windus, 1880).

47. For an express trust to be enforceable it must have certainty of intention, subject matter and objects: Knight v Knight (1840) 3 Beav 148. A gift to ‘poor inhabitants of St Leonard, Shoreditch’, though uncertain as to objects was held valid in A-G v Clarke (1762) Amb 422. However, abequest ‘to and for such charitable purposes’ was considered too indefinite in Ellis v Selby (1836) 1 My & Cr 286.

48. See eg Re Bowen (1893) 2 Ch 494; Re Tyler [18911 3 Ch 257; Pemsel at 580-581.

49. Above nn 14–15.

50. (1891) AC 531 at 583.

51. A spectrum including, inter alia, trusts for the arts, recreational purposes, animal welfare and the benefit of localities. It may be argued that vulnerability is redressed across the broad band of charitable trusts, ranking educational, spiritual and cultural vulnerability alongside poverty. Practically, however, the focus of the other Pemsel heads upon vulnerability is more dilute than for the relief of poverty.

52. Morice v Bishop of Durham (1805) 10 Ves 522; Re Gassior (1901) 70 LJ (Ch) 242. In certain circumstances, equity enforces a charitable trust when the objective criteria are satisfied but the court's concern for vulnerability lies not with the trust's beneficiaries, but with those denied any advantage from the property. See eg Re Wall (1889) 42 Ch D 510, where Kay J was obliged to hold charitable a trust for certain aged persons, denying the testator's widow access to the fund.

53. ‘Value’ in this context is used to describe the utility or benefit of charity. The substantive point was made briefly by the author in ‘Equity is dead. Long Live Equity!’ (1999) 62 MLR 140 at 148.

54. The conflicts earlier highlighted (see text to nn 2-19) have all been economically based: the wealth of the Church against that of the monarch: the wealth of the landed gentry against poor beneficiaries; and the impact upon Treasury revenues against taxation privileges for charitable trusts.

55. The body of the Act was repealed by the Mortmain and Charitable Uses Act 1888, and the Preamble by the Charities Act 1960. However, the preamble is so entrenched in the case law that cases still proceed by reference to the charitable purposes contained within it. For a rather innovative analogy, see Vancouver Regional Free Net Association v Minister of National Revenue (1996) 137 DLR (4th) 206.

56. Though comprehensive, the list is not conclusive: see Morice v Bishop of Durham (805) 10 Ves 522; University of London v Yarrow (1857) 1 De G & J 72 at 79.

57. Consider Thomson v Shakespear (1860) 1 DF&J 399, where a bequest to provide for the lighting, cleansing and improving of a town was held charitable.

58. A similar situation lies in the discretion to grant relief on the grounds of poverty under s 53 of the General Rate Relief Act 1967, foreshadowed by Acts in 1814 and 1601. See R v Liverpool CC, ex p Windsor Securities Ltd (1979) RA 159; Polo Pictures Ltd v Trafford MBC (1987) 27 RVR 74; Hummingbird Entertainment Ltd v Birmingham CC (1991) RA 165.

59. Jones v Williams (1767) Amb 651.

60. This point was Gareth Jones’ conclusion upon interpreting Francis Moore's Reading on Charitable Uses Act 1601, above n 8 at p 27ff. Moore listed a number of cases he believed were within the ambit of the preamble. Two of his examples support this point: ‘To relieve inhabitants of taxes for bastards, for the parish is under an obligation to maintain them where their parents cannot do so. But a general gift to relieve bastards is not within the statute, for only bastards of disabled parents are charged on the parish’ . Second, ‘Only a use for the repair of a church was within the letter of the statute. The financial burden of repairing the church and of providing for the administration of divine service was imposed at common law on the parish’ . Moore's Reading is reproduced in G Duke The Law of Charitable Uses (London: Henry Twyford, 1676) pp 129-186, and discussed in G Jones above n 8 at p 27 ff. See also G Jones ‘Francis Moore's Reading on the Statute of Charitable Uses’ (1967) 25 CLJ 224. The prosaic context of the Preamble is put into focus when examined alongside the Elizabethan implementation of a poor law, through which charity was used to offset the cost of responsibility.

61. See Holdsworth, W. S. A History of English Law (London: Methuen, 3rd edn, 1922) vol 1 at p 396 ff. Two other statutes were enacted in 1601 along the theme of relief 43 Eliz c 2 (concerning the poor law); 43 Eliz c 3 (the relief of poor mariners and soldiers). Earlier statutes also indicated the state's preoccupation with the maintenance of order and the nature of society: 22 Hen VIII c 12 (to keep the poor within their own parish and apprentice poor boys); 27 Hen VIII c 25 (setting up penalties for giving money to unlicensed beggars); 14 Eliz c 5 (defining the professional and the real poor); 39 Eliz c 3 (permitting taxation of the parish to set the poor to work); 39 Eliz c 4 (concerning ‘houses of correction’ for the vagabond poor).

62. The similarity between Tudor England and late-eighteenth-century France is marked. Steps towards secularisation, religious indifference, financial crisis, the inadequacy of traditional charity and the emergence of a state poor law which characterised pre-Revolutionary France equally applied pre the 1601 Act: see C Fairchilds Poverty and Charity in Air-en-Provence 1640-1789 (Baltimore: Johns Hopkins University Press, 1976) p 147; W F Finlason An Essay on the History and Effects of the Laws of Mortmain and the Laws Against Testamentary Dispositions for Pios Purposes (London: Dolman, 1853) pp 65–68; W K Jordan Philanthropy in England 1480-1660 (London: Allen & Unwin, 1959) pp 92–93.

63. Charitable trusts have been used to encourage concerns of the state in other periods: see B Rodgers Cloak of Charity: Studies in Eighteenth Century Philanthropy (London: Methuen, 1949) p 12 ff.

64. Per Lord Westbury in Verge v Somerville (1924) 496 at 499. See also Goodman v Mayor of Saltash (1882) 7 App Cas 633 at 650; Re Foveaux (1895) 2 Ch 501 at 504.

65. Public benefit is common to all heads of charity: see Re Scarisbrick (1951) Ch 622; Oppenheim v Tobacco Securities Trust Co Ltd (1951) AC 297; Gilmour v Coats (1949) AC 426; IRC v Baddeley (1955) AC 572. For discussion of public benefit, see the opinion of H Picarda in Annex III of the charity Law Association's Response to the Charity Commission's Framework for the Review of the Register of Charities (1998) NGO Finance (Nov).

66. See Cunnack v Edwards (1896) 2 Ch 679; Re Scarisbrick (1951) Ch 622.

67. Eg Re Segelman (1996) Ch 171, in which a gift to relieve poverty amongst specified members of Segelman's family was saved by the inclusion of a reference to their future issue amongst the class of persons to benefit.

68. Poor relations cases include Isaac v Defriez (1754) Amb 595; White v White (1802) 7 Ves 423; A-G v Price (1810) 17 Ves 371; A-G v Duke of Northumberland (1877) 7 Ch D 745; Re Scarisbrick (1951) Ch 6 22; Re Segelman (1996) Ch 171. Poor employees cases include Re Gosling (1900) 48 WR 300; Re Drummond (1914) 2 Ch 90; Gibson v South American Stores (Gath & Chares) Ltd (1950) Ch 177; Re Young (1955) 1 WLR 1269; Dingle v Turner (1972) AC 601.

69. see Re Compton (1945) Ch 123, Oppenheim v Tobacco Securities Trust Ltd (1951) AC 297.

70. (1945) Ch 123 at 139.

71. Roman Law, upon which the English system of charity is partly based, did not stress the relief of poverty, but the benefit to the community that such charity was able to provide: for discussion see H Picarda ‘Charity in Roman Law: Roots and Parallels’ (1992-1993) 1 Charity Law and Practice Review 9 at 11.

72. See Re Compton (1945) Ch 123; Re Hobourn Aero Components Ltd Air Raid Distress Fund (1946) Ch 194; Dingle v Turner (1972) AC 60. The Ontario Law Reform Commission recommended that these charities be exempt the general taxation privileges because of the private benefits they afford to the beneficiaries: Report on the Law of Charities (Ontario; OLRC, 1996) ch 8.

73. In Re Wall (1889) 42 Ch D 510 the enforcement of a charitable trust denied funds to the testator's widow. With great reluctance, Kay J upheld the trust, but observed (at 512): ‘if I had the power of legislation I would not allow such a will to take effect for a single moment.’

74. From its feudal origins as an incident of tenure and its use in the seventeeth and eighteenth centuries as a method of property protection, welfare considerations towards the child steadily grew during the early years of the twentieth century until wardship was removed from Chancery to the Family Division of the High Court in 1970, whereupon the number of applications developed dramatically, which led to curbs on wardship being enacted in the Children Act 1989: see Eyre v The Countess of Shaftsbury (1722) 2 PWm 103; Re Spence (1847) 2 Ph 247; Hope v Hope (1854) De GM&G 328; Re M (1961) Ch 328; Report of the Committee on the Age of Majority (Cmnd 3342) (1967).

75. Of relevance is the Lord Chancellor's personal jurisdiction over persons of unsound mind. Under the Statute de Praerogativa Regis (17 Ed II 1) the monarch had custody of lands and profits of ‘ideots’, but acted as guardian of the same for ‘lunaticks’ . Originally, this jurisdiction centred upon protection of property, but welfare considerations grew: see Ridgway v Darwin (1802) 8 Ves 65; Re Holmes (1827) 4 Russ 187; Re Bariatinski (1843) 1 Ph 375; Re Sefton (1898) 2 Ch 378. This area is now regulated by the Mental Health Acts and the Court of Protection.

76. (1909-1910) 101 LT 908.

77. See Jenkins J in Re Coxen (1948) Ch 747 at 755. A gift to provide an annual dinner will not be charitable where its purpose is no more than a premium: Re Earner (1908) 24 TLR 788.

78. (1951) 1 All ER 528. See also Re Estlin (1903-1904) 89 LT 88.

79. (1881) 18 Ch D 310.

80. Above text to n 44-46

81. (1855) 21 Beav 233.

82. (1848) 2 Ph 594.

83. Alder and Handy have pointed out that of the 4,000 housing associations, approximately 66% are charities. 60% are financed through central government in the guise of the Housing Corporation: Housing Associations (London: Sweet & Maxwell, 1997) at pp 3 and 67.

84. Letter of Charity Commission to plaintiffs solicitors, in Joseph Rowntree Memorial Trust Housing Association v A-G (1983) 1 Ch 159 at 166–167.

85. Garfield Poverty Trust (1995) 3 Decisions of the Charity Commissioners 7 (loans to poor young members of the Exclusive Brethren); Habitat for Humanity GB (1995) 4 Decisions of the Charity Commissioners 13 (loans to those who cannot get a mortgage with inadequate or no accommodation). See earlier Re Monk (1927) 2 Ch 197.

86. This strengthens the point that the cost to the Revenue of the tax exemptions for charities has to be considered in the context of what it would otherwise cost the government to provide similar services.

87. See eg Camille & Henry Dreyfus Foundation v IRC (1954) Ch 672; Re Niyazi's Will Trusts (1978) 1 WLR 910; The Fairtrade Foundation (1995) 4 Decisions of the Charity Commissioners I. Partnership in combating poverty is emphasised both in the International Development Select Committee's 7th report (1998) and DFID's White Paper on International Development, Eliminating World Poverty: A Challenge for the 21st Century (1997), at paras 2.31 and 2.40. In addition, Millennium Gift Aid, established under ss 4748 of the Finance Act 1998 and s 83A of the Income and Corporation Taxes Act 1988, gives tax relief on donations made between 31 July 1998 and the end of December 2000 to certain charities working in the area of education, relief of poverty and overseas development in specified countries. The countries, which include Azerbaijan, Ethiopia, Rwanda and Sudan, are those regarded as the world's poorest.

88. Charity Commission RR1 - The Review of the Register of Charities (London: TSO, 1999).

89. See Charity Commission RR3 - Charities for the Relief of Unemployment (London: TSO, 1999); Charity Commission RR2 - Promotion of Urban and Rural Regeneration (London: TSO, 1999).

90. Above n 89, para A 1. This follows from IRC v Oldham Training & Enterprise Council (1996) STC 1218.

91. Above n 89, see particularly, para 8 and the Annex para A25(a)-(m) where these model objects are laid out. Charities are expected to undertake at least three-four such objects.

92. Charity Commission Promotion of Community Development Discussion Document (London: TSO, 1999). Community development is concerned with assisting a community to provide for its own needs by collective action (para 14), through which ‘members are empowered through the acquisition and development of skills and capabilities’ (para 15).

93. Ibid at para 7. This is not to say that the Charity Commission, through their Review of the register, are advocating that charity become a state substitute. On the contrary, in their latest discussion document, The Independence of Charities from the State (London: TSO, 1999). consultation for which extended to the end of January 2000, the Charity Commission have emphasised the need for charities to remain independent. The Commission recognise that the state is to a large degree reliant upon charities for the provision of government services and that this is not per se inconsistent with charitable status. However, they emphasise that a charity may lose its charitable status if its connection with state activity leads it to cease carrying out purposes that are exclusively charitable.

94. See A-G v Clarke (1762) Amb 422 at 422–423; Lechmer v Cutler (1855) 24 LJNS Ch 647; Paddington Burial Board v Commissioners of IR (1884) 13 QBD 9; A-G v Corporation of Exeter (1827) 3 Russ 395. The latter case was first considered by Eldon LC ((1827) 2 Russ 45) who, during the course of the submissions, failed to concur with the argument that the application of a bequest to those in receipt of parish alms was precluded. He argued (at 51-52): ‘There may be many cases in which there cannot be a more prudent application of a charity fund than by giving it to those who are receiving parish relief, not thereby exonerating the rich from contributing to the relief of the poor, but adding to the relief, which the law has provided.’ Lord Eldon resigned the seal before the case was concluded and his successor, Lord Lyndhurst, took an opposite view.

95. (1866) LR 3 Eq 424 at 431. See also A-G v Duke of Northumberland (1877) 7 Ch D 745.

96. Above n 12 at p 362.

97. Charity Commission Charities for the Relief of the Poor Met CC4 (London: TSO, 1995).

98. Substantively begun in the Thatcher years and now heralded by the current Prime Minister, see T Blair The Third Way: New Politics for the New Century (London: The Fabian Society, 1998).

99. Report of the Commission on the Future of the Voluntary Sector (London: NCVO, 1996).

100. Including a Government Relations Working Group, Quality Standards Task Group, New Resources Group, Charity Law Reform Advisory Group, Joint Fiscal Working Group and a Business Relations Task Force.

101. Compact on Relations between Government and the Voluntary and Community Sector in England (Cm 4100) (1998).

102. Ibid at paras 5, 6.

103. See eg (1990) Ch Com Rep 36, (1996) Ch Com Rep 7.

104. See ‘White Paper’ on Quality in the Voluntary Sector (London: NCVO, 1998); Charity Commission Hallmarks of a Well-Run Charity Leaflet CC60 (London: TSO, 1999).

105. Charity Commission Review of the Charities SORP: A Consultation Letter (London: Charity Commission, 1998). The Charity Commission have produced a number of guidelines to charities on accounting, which include: Charity Accounts: The New Framework Leaflet CC51 (London: TSO, 1995); Accounting for the Smaller Charity Leaflet CC54 (London: TSO, 1995); International Financial Controls for Charities Leaflet CC8 (London: TSO, 1996).

106. SI 1994/3204. See P Luxton ‘Control of Fundraising for Charitable Institutions, The New Law’ (1992-1993) 1 Charity Law and Practice Rev 147 and 233; Charity Commission Charities and Fund Raising Leaflet CC20 (London: TSO, 1995). 107. For discussion, see D Moms ‘Charity Investment in the UK: Some Contemporary Issues for the 1990s’ (1995) 3 Web JCLI. See also Charity Commission Charities Reserves Leaflet CC 19 (London: TSO, 1997); Charity Commission Investment of Charitable Funds Leaflet CC14 (London: TSO, 1995).

108. Pemsel (1891) AC 531 at 583.

109. See in particular the comments of Lord Sterndale MR in National Provincial and Union Bank of England v Tetley (1923) 1 Ch 258 at 266. Lord Halsbury's view in Pemsel (1891) AC 531 at 552 was that the real ordinary use of the word ‘charitable’ as distinguished from any technicalities whatsoever, always does involve the relief of poverty, cf Lord Herschell at 571.

110. Eg Lord Macnaghten in Pemsel (1891) AC 531 at 580; Lord Simonds in National Anti-Vivisection Society v IRC (1948) AC 31 at 63.

111. (1950) 1 All ER 882.

112. Eliminating World Poverty above n 87 at para 1.9.

113. Households Below Average Income: 1979-1996/7 (London: HMSO, 1998) p 15; R Endean and T Harris ‘A Picture of Poverty in the UK’ (1998) (Winter) Social Trends Q 9 at 11. In terms of inequality, the average income of the poorest 20% is up to 19 times less than the average income of the richest 20%: T Hams ‘The Effects of Taxes and Benefits on Household Income, 1997-1998’ (1999) 545 Economic Trends 27. See also C Howarth et al Monitoring Poverty and Social Exclusion: Labour's Inheritance (York: JRF, 1999); R Cohen et al Hardship Britain: Being Poor in the 1990s (London: CPAG, 1992); Oppenheimer and Harker Poverty: The Facts (London: CPAG, 3rd edn, 1996).

114. See eg 1998 Index of Local Deprivation: A Summary of Results (London: DETR, 1998); R Wilkinson Unfair Shares: The Effects of Widening Income Differences on the Welfare of the Young (Essex: Barnados, 1994)

115. HRH Duke of Edinburgh 11th Annual Arnold Goodman Lecture (Kent: CAF, 1994) p 13.

116. T Harris, above n 113 at 27.

117. On the problems with the definition of poverty see S Maxwell The Meaning and Measurement of Poverty (London: Overseas Development Institute, 1999). Whether poverty should be assessed on absolute or relative criteria is an issue upon which few agree. Maxwell explains how the trends have shifted from the 1960s approach of assessing poverty of the basis of income, through the importance placed upon ‘basic needs’, to the development in the 1990s of ascribing relevance to a subjective perception as defining poverty.

118. See particularly Lord Simmonds’ observations in Gilmour v Coats (1949) AC 426 at 443.

This article is based on a PhD chapter. The author is particularly grateful to Professor Ann Rosemarie Everton for her supervision, assistance and support, and to the article's anonymous referees for their constructive comments.

* The origin of this phrase is uncertain. It was used by Theodore Hook in his novel Jack Brag (Paris: W Galignani & Co, 1837) ch 15, and is possibly an adaptation of biblical references to man's charity becoming cold, see for example, Matthew ch 24, v 12. See further, The Oxford Dictionary of English Proverbs (Oxford: Clarendon Press, 1948).

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