When is a trust charitable?
For a trust to be charitable in law, it must be for a purpose which is considered in law to be prima facie charitable. The purposes considered to be charitable are all purposes which in a general sense can be considered to be beneficial. In addition to this requirement, the particular application contained in the trust must be for the public benefit. The rationale is that even if a purpose can be considered in a general sense to be beneficial, it should only secure the privileges of charitable status if benefits are conferred upon the public rather than being confined to a small group of private individuals. Finally if it is possible for funds to be applied in ways which are not considered to be charitable, this will prevent the whole trust from being considered to be charitable, even if parts, taken alone, could have been held charitable.
Statutory definition of ‘charity’
Until the Charities Bill 2005, there had been no statutory definition of charity. Given the significance of the distinction between charitable and non-charitable trusts, this might be thought surprising. Until the enactment of the Charities Bill into law, the meaning of ‘charity’ as a legal concept is therefore determined by reference to judicial precedents and the decisions of the Charity Commission.
The Charities Bill 2005 for the first time contains a statutory definition of charitable purposes. This definition has made almost no change to the law, and preserves the flexibility which was a fundamental feature of the previous categorisation of charitable purposes. The definition essentially consolidates the previous law, and has the advantage of providing a greater degree of transparency about the range of purposes which are currently considered to be charitable in law. The main drawback with the definition is that, because it incorporates a reference to the previous law, it is impossible to draw a line at the date of the enactment of the Charities Bill 2005 into law: it is also necessary to have regard to most of the case law prior to its enactment.
Relevance of previous law
The Charities Bill 2005, cl 2(2) provides a list of purposes which are prima facie considered to be charitable, but then states that any purposes which do not fall within the specific categories in the list shall be recognised as charitable if they are ‘recognised as charitable purposes under existing charity law.’ The statutory definition therefore adds to rather than replacing existing law.
List is not closed
The Charities Bill retains the dynamism of the previous concept of charitable purposes. The previous law recognised the possibility of development by analogy or because of changes in society and public attitudes. For example, in Scottish Burial Reform and Cremation Society v Glasgow City Corporation  AC 138, a trust to promote cremation as a method of disposal of the dead was held charitable by the House of Lords as it was analogous to earlier cases in which it had been held that trusts or the maintenance of graveyards were charitable. Development was possible even where previous case law suggested that a purpose would not, in the past, have been considered to be charitable. The concept of development by analogy is recognised by cl 2(4)(b) of the Charities Bill which states that charitable purposes include ‘any purposes that may reasonably be regarded as analogous to, or within the spirit of, any purposes falling within’ the listed categories or the provision retaining existing charitable purposes. Moreover development by analogy upon analogy is expressly preserved. Clause 2(4)(c) permits development by analogy from development by analogy and so on ad infinitum. Te extraordinary effect of the statutory definition is therefore that it retains all the elements of the previous law. The only change effected by the statutory definition is that the list of purposes which it contains can be changed only by legislation: under the previous law it was possible for a purpose which was once considered to be charitable to cease to be charitable because of changing social conditions.
As Lord Wilberforce observed in Scottish Burial Reform and Cremation Society v Glasgow City Corporation, ‘the law of charity is a moving subject’ which evolves over time. This was also recognised by Lord Simmonds in National Anti-Vivisection Society v IRC, where a society which promoted the suppression of vivisection was held not to be charitable, as the court found that the advantages of reduced cruelty to animals were outweighed by the detriments to medical research that would be caused if the purpose was accomplished. He said that:
‘A purpose regarded in one age as charitable may in another be regarded differently… I conceive that an anti-vivisection society might at different times be differently regarded.’
This flexibility to take into account changes in society and in public attitudes is unlikely to be possible for purposes which have been entrenched by legislation.