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Regulating gifts of generosity: the Aberfan Disaster Fund and the Charity Commission*

  • Iain McLean (a1) and Martin Johnes (a2)
Abstract

After the Aberfan disaster on 21 October 1966, which killed 144 people, 116 of them children, the Charity Commission, duty-bound to uphold an outdated and inflexible law, intervened and obstructed payments by the charitable disaster fund to individual victims and for the cemetery memorial. It did not intervene to protect the fund from a government raid on its money to pay for the removal of dangerous coal tips above Aberfan – a raid that seems dubiously justifiable in charity law. The failures of regulation after Aberfan are discussed; some of them have since been remedied, some not.

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*

The work reported in this paper was funded by the British Academy (grant APN 6714) and the Economic & Social Research Council (grant R000222677). These grants are gratefully acknowledged. We also wish to thank the people of Aberfan for their forbearance (especially those we interviewed specifically for this paper); seminar participants at the Law Faculty Seminar, University of Southampton, 2 December 1998; Malcolm Todd, Assistant Departmental Records Officer at the Charity Commission; several charity lawyers whose advice we have informally sought and the journal's anonymous referees.

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1. Charity Commission statement 1974. Quoted from the History of the Organisation of Central Government Departments 1964-92 database at http://www.nuff.ox.ac.uk/politics/whitehall/.

2. Above n 1, 1973–4.

3. Quoted from the mission statement on the front page of the Charity Commission's website, February 1999: http://www.charity-commission.gov.uk/.

4. The study stops in 1969 because, as yet, only the papers of the Charity Commission up to the end of 1969 are open to the public under the 30-year rule.

5. M Chesterman Charities, Trusts and Social Welfare (London: Weidenfeld and Nicolson, 1979) pp 339–346 discusses the situation as it then appeared, although he did not have access to the records or to local interviews.

6. Minutes of Aberfan Disaster Fund Management Committee 2 February 1968, Glamorgan Record Office (GRO) D/D X 295/12/1/2.

7. C M Parkes and D Black ‘Disasters’ in C M Parkes and A Markus (eds) Coping with Loss: Helping Patients and their Families (London: BMJ Books, 1998).

8. Re Gillingham Bus Disaster Fund (1957) 3 WLR 1069. A bus had crashed into a line of marching cadets, killing 24 of them. The bus company's insurer met most of the claims, leaving a large charitable fund with a small number of direct beneficiaries. The last of the money was not disposed of until 1993, 42 years after the cadets were killed.

9. Above n 5, p 344.

10. Charity Commission meeting of 8 November 1966. Public Record Office (PRO) CHAR 9/2.

11. Report of the Charity Commissioners for England and Wales for the Year 1966 (London: HMSO, 1967) paras 10–11, p 6.

12. PQ by Alexander, Lyon (Lab, York) and replies by the Prime Minister, 25 October 1966. Hansard, , Commons, 5th series, vol 734, 825–6.

13. Charity Commission meeting of 27 January 1967. PRO CHAR 9/2.

14. Surprisingly, in view of the salience of Aberfan, the Charity Commission case file on Aberfan has not survived.

15. Charity Commission meeting of 7 July 1967. PRO CHAR 9/2.

16. The First Report of the Management Committee of the Aberfan Disaster Fund 1968, p 27. 17. Above n 16, p 28.

18. H Francis and D Smith The Fed: A History of the South Wales Miners in the Twentieth Century (Cardiff, 2nd edn, 1998) ch 8.

19. Interview, MJ and Mr and Mrs T (bereaved parents, names withheld) 1 February 1999.

20. Above n 16, p 29.

21. PRO Coal 73/2: W J P Webber to Lord Robens, 25 April 1967 (accepting liability); D Haslam to same, 31 May 1967 (‘ good offer’); D H Kelly to same, 8 June 1967 (‘ hard core’); Secret Minute of the board 16 June 1967 (agreeing not to go above £500 per victim).

22. In Naylor v Yorks Electricity Board (1968) AC 529 the tariff for compensation for causing the death of somebody under 21 was set at & 500, raising the limit of & 200 set in Benham v Gambling (1941) AC 157. In Benham v Gambling, the court decided that damages for the death of a minor should not be for the loss of life per se, but for the loss of the ‘prospect of a predominantly happy life’ . Given the uncertainty of such a prospect, ‘very moderate’ damages were recommended. It seems that in 1941 the courts thought that most of us grow up in a vale of tears.

23. PRO POWE 52/68. Briefing note for Minister in Aberfan debate, September 1967, sect 14. Aberfan Compensation, Claims and Payments by NCB.

24. Telephone interview, MJ and fund trustee (name withheld), 7 December 1998, recalling an interview between the trustee and Elwyn Jones AG, 1967; Above n 16, pp 26–30

25. Above n 19.

26. Minutes of Aberfan Disaster Fund Management Committee, 8 September 1967, appendix B, GRO DID X 295/12/1/1. Above n 16, p 29.

27. Noted in minutes of Charity Commission meeting of 7 February 1968. PRO CHAR 9/2. Above n 24 (trustee interview).

28. W E A Lewis, Charity Commissioner, Minutes of Aberfan Disaster Fund Management Committee, 8 September 1967. GRO DID X 295/12/1/1.

29. Minutes of Aberfan Disaster Fund Management Committee, 9 November 1967. GRO DID X 295/12/1/1. Initially, all families with at least one surviving child who had been a pupil of either of the Aberfan schools at the time of the disaster received £200 if they had not also been bereaved. Above n 16, pp 35–36.

30. Minutes of Aberfan Disaster Fund Management Committee, 2 February 1968. GRO DID X 295/12/1/2.

31. Above n 24 (trustee interview).

32. Charity Commission meeting of 7 February 1968. PRO CHAR 912.

33. Charity Commission meeting of 6 March 1968. PRO CHAR 912; cf Minutes of Abegan Disaster Fund Management Committee, 1 March 1968. GRO D/D X 295/12/1/2.

34. Minutes of Aberfan Disaster Fund Management Committee, 29 May 1968.

35. Above n 16, p 36.

36. Detailed notes of discussion with Dr Cuthill at the meeting held on 6 December 1968. Minutes of Aberfan Disaster Fund Management Committee. GRO D/D X295/12/1/3.

37. Above n 16, pp 34–35.

38. C Geoffrey Morgan Second Report of the Management Committee of the Aberfan Disaster Fund 1970, p 10.

39. Crocker v British Coal Corporation Times. 5 July 1995, (1996) JPIL Issue 1/96. LAWTEL, Document no C0002592. http://www.lawtel.co.uk.

40. R E Kendell and A K Zealley (eds) Companion to Psychiatric Studies (Edinburgh: Churchill Livingstone, 5th edn, 1993) p 5 18. Cf letter from Rev Kenneth Hayes of Aberfan Parents and Residents Association to the Prime Minister, Harold Wilson, 29 January 1968: ‘Every time it rains people are afraid to go to bed… and all of us subconsciously are awaiting the alarm to sound… The mental wellbeing of the community today, and the safety of the unborn generations depends on the removal of tips.’ PRO BD 11/3791 PM's papers after Aberfan Disaster.

41. Above n 24 (trustee interview). B Nightingale Charities (London: Allen Lane, 1973) p 184, claims that the Charity Commission felt that the donation would help rehabilitate Aberfan and was thus in accordance with the trust deed. We have been unable to get any confirmation of this claim.

42. Welsh Office, Background note for J Siberry (Assistant Secretary dealing with Aberfan), 25 July 1968. PRO BD 11/3804.

43. PRO COAL 73/2. Minutes of meeting on 6 March 1967.

44. Western Mail, 27 July 1968. When the extent of the government and NCB pressure on the Disaster Fund started to become publicly known, George Thomas (Lord Tonypandy) stated that he would have resigned had the government not acceded to Aberfan's repeated requests. Western Mail, 1 August 1997.

45. Western Mail, 27 July 1968.

46. Western Mail, 21, 29 July, 6 August 1968.

47. Minutes of Aberfan Disaster Fund Management Committee, 8 August 1968. GRO D/D X 295/12/1/2.

48. PRO BD 11/3804, Background note for Siberry, 25 July 1968.

49. Minutes of Aberfan Disaster Fund Management Committee, 8 August 1968. GRO D/D X 295/12/1/2.

50. Western Mail, 9 August 1968.

51. Western Mail, 14 August 1968.

52. Merthyr Express, 15 August 1968.

53. I McLean ‘On moles and the habits of birds: the unpolitics of Aberfan’, (1997) 8 20th Century British History 285–309.

54. PRO BD 52/154, ‘Brief for Aberfan Debate’ . Shambles: ‘A place of carnage or wholesale slaughter; a scene of blood’ (Oxford English Dictionary sense 5a).

55. PRO BD 52/154 ‘Brief for Aberfan Debate’.

56. Minutes of Aberfan Disaster Fund Management Committee, 8 August 1968. GRO D/D X 295/12/1/2.

57. H Picarda The Law and Practice Relating to Charities (London: Butterworths, 1977) p 91.

58. H E Davies (chairman) Report of the Tribunal appointed to inquire into the Disaster at Aberfan on October 21st 1966 HL 316 and HC 553 (London: HMSO, 1967) para 161.

59. Above n 58, Appendix D. Original copies of the Memorandum are in the Tribunal papers, PRO BD 52.

60. Above n 58, paras 279–80.

61. Hansard, Commons, 5th series vol 751 , cols 1928-9, 2010-2011.

62. PRO BD 52/1/8, ‘Proposed alternative methods of removing the whole of the tip complex’, June 1967; above n 53.

63. Rylands v Fletcher (1868) LR 3, HL 330; A-G v Cory Bros & Co Ltd (1921) 1 AC 521.

64. Such a duty was imposed in the Mines and Quarries (Tips) Act 1969, over the objections of the Coal Division of the Ministry of Power, who said that imposing a duty to protect the public ‘would be a revolutionary innovation in the field of industrial safety legislation’ . PRO POWE 52/68, Coal Division memo on tribunal findings and recommendations.

65. South Wales Coalfield Collection, University of Wales, Swansea, S O Davies to Harold Wilson, 7 May 1970, MNA/PP/16/37.

66. Telephone interview, MJ and Aberfan Memorial Fund secretary, 29 January 1999.

67. Western Mail, 1 August 1997; South Wales Echo, 31 July, 1 August 1997.

68. The Charity Commissioners: how they can help charity trustees paras 1, 3; cf also para 10. In Report of the Charity Commissioners for England and Wales for the Year 1967 (London: HMSO, 1968) pp 33–37.

69. See eg draft reply to letter from L R Beard to the Prime Minister, 13 March 1970. PRO BD 11/3791.

70. See C Wells Negotiating Tragedy: Law and Disasters (London: Sweet and Maxwell, 1995) pp 94–95.

71. See R W Suddards (ed) Administration of Appeal Funds (London: Sweet and Maxwell, 1991).

72. See P Luxton Charity Fund-Raising and the Public Interest: An Anglo-American Legal Perspective (Aldershot: Avebury, 1990) p 124. The Herald of Free Enterprise fund was also split into two, with one being charitable and the other not.

73. S Coleman, A Jemphrey, P Scraton and P Skidmore, Hillsborough and After: The Liverpool Experience, First Report (Centre for Studies in Crime and Social Justice, Edgehill, 1990), ch 6.

74. Deakin, N. (chairman) Meeting the Challenge of Change: Voluntary Action into the 21st Century, the Report of the Commission on the Future of the Voluntary Sector, NCVO, 1996 (vol 1 ), para 3.2.6. Charity Commission, RR1 – The Review of the Register of Charities. However, Peter Luxton notes that a redefinition would bring a flood of litigation attempting to clarify the meaning of charity: ‘The Deakin Report: Its Legal Implications’ (1996) 146 NLJ 15.

75. See above n 53, pp 307–308.

76. Above n 74 (Review of Register of Charities), paras 1–2, 13–14. quoted at 2 and 13.

77. DPP v P & O European Ferries (Dover) Ltd (1991) 93 Cr App R 73; R v Kite and OLL Ltd Winchester Crown Court, (unreported, 8 December 1994) 144 NLJ 1735. See further C Wells Corporation and Criminal Responsibility (Oxford: OUP, 1993) and above n 70, ch 7.1

* The work reported in this paper was funded by the British Academy (grant APN 6714) and the Economic & Social Research Council (grant R000222677). These grants are gratefully acknowledged. We also wish to thank the people of Aberfan for their forbearance (especially those we interviewed specifically for this paper); seminar participants at the Law Faculty Seminar, University of Southampton, 2 December 1998; Malcolm Todd, Assistant Departmental Records Officer at the Charity Commission; several charity lawyers whose advice we have informally sought and the journal's anonymous referees.

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