Scottish Burial Reform & Cremation Society v Glasgow Corp [1967] UKHL 3

House of Lords
Between
Scottish Burial Reform & Cremation SocietyAppellantGlasgow CorpRespondent
Before
Lord ReidLord GuestLord UpjohnLord WilberforceLord Pearson

LORD GUEST

My Lords,The Appellants seek a declarator that they are entitled to remission of rates payable to the Respondents in terms of section 4 (2) of the Local Government (Financial Provisions etc.) (Scotland) Act 1962. That section grants a partial remission where lands are occupied by a charity and are wholly or mainly used for charitable purposes. If the Appellants are a charity it is not disputed that the second requirement is satisfied in this case. The question for decision is whether they are a charity. Section 4 of the Act provides that charity means an institution or other organisation established for charitable purposes only, and that " charitable" is to be construed in the same way as if it were contained in the Income Tax Acts. It is well settled that that means that we have to apply the English law of charities.The Appellants are a limited company incorporated in 1890. Their leading objects are:" (a) To promote reform in the present methods of Burial in Scotland, " both as regards the expense involved and the dangerous effects on the " public health.
" (b) To promote inexpensive and at the same time sanitary methods " of disposal of the dead, which shall best tend to render the remains " innocuous; and, in particular to promote the method known as " Cremation."
Their Memorandum of Association prohibits any payment to members by way of dividend or profit and prohibits any payment to any director; and it farther provides that on a winding up nothing is to be distributed to members but any assets are to be transferred to some other organisation having similar objects. The paid up capital is £3,492.The Appellants have for many years carried on a crematorium in Glasgow, the average number of cremations per annum being now over 2,000. They charge fees which are not intended to yield a profit, but in many years there has been a surplus, and, in addition to owning the premises for which they know seek rating relief, they have substantial reserve funds.It is not disputed that to be a charity they must shew not only that their purposes are beneficial to the community but also that those purposes are within the spirit and intendment of the preamble to the Statute of Elizabeth (now set out in the Mortmain and Charitable Uses Act 1888 section 13).In the Court of Session the Lord Ordinary and the Second Division (the Lord Justice-Clerk, Lord Strachan and Lord Wheatley, Lord Walker dissenting) dismissed this action on the ground that the Appellants' averments are irrelevant. All but Lord Walker held that they had failed to bring their purposes within the spirit and intendment of the preamble to the statute of Elizabeth. The Lord Ordinary, Lord Strachan and Lord Walker held that their purposes were beneficial to the community. The Lord Justice-Clerk and Lord Wheatley held that their averments were insufficient to justify that conclusion.The Appellants' main purpose and activity is to promote and afford facilities for cremation. In this they were pioneers, and it may be that, if the question had arisen soon after 1890, it would have been necessary to adduce evidence of benefit to the public. But I do not think that that is now necessary. It is common knowledge that in all parts of the United Kingdom cremations are now very numerous. And the propriety of2cremation was recognised by Parliament as long ago as 1902 (Cremation Act 1902). Local authorities now have power to conduct crematoria, and Glasgow now has a municipal crematorium. I cannot see why farther evidence of public benefit should be required. If there is a public benefit, the Appellants cannot on the facts of this case be disqualified because there is or might also be a profit or benefit to individuals involved in the prosecution of their objects. Nor can they be disqualified because the benefit does not extend to a sufficiently large section of the community.But the Appellants must also shew that the public benefit is of a kind within the spirit and intendment of the Statute of Elizabeth. The preamble specifies a number of objects which were then recognised as charitable. But in more recent times a wide variety of other objects have come to be recognised as also being charitable. The Courts appear to have proceeded first by seeking some analogy between an object mentioned in the preamble and the object with regard to which they had to reach a decision. And then they appear to have gone farther and to have been satisfied if they could find an analogy between an object already held to be charitable and the new object claimed to be charitable. And this gradual extension has proceeded so far that there are few modern reported cases where a bequest or donation was made or an institution was being carried on for a clearly specified object which was for the benefit of the public at large and not of individuals, and yet the object was held not to be within the spirit and intendment of the Statute of Elizabeth. Counsel in the present case were invited to search for any case having even the remotest resemblance to this case in which an object was held to be for the public benefit but yet not to be within that spirit and intendment. But no such case could be found.There is, however, another line of cases where the bequest did not clearly specify the precise object to which it was to be applied but left a discretion to trustees or others to choose objects within a certain field. There the Courts have been much more strict, so that if it is possible that those entrusted with the discretion could, without infringing the testator's directions, apply the bequest in any way which would not be charitable (for example, because it did not benefit a sufficiently large section of the public) then the claim that the bequest is charitable fails. But that line of cases can have no application to the present case, and it is easy to fall into error if one tries to apply to a case like the present judicial observations made in a case where there was a discretion which could go beyond objects strictly charitable.In the present case the Appellants make a charge for the services which they provide. But it has never been held that objects, otherwise charitable, cease to be charitable if beneficiaries are required to make payments for what they receive. It may even be that public demand for the kind of service which the charity provides becomes so large that there is room for a commercial undertaking to come in and supply similar services on a commercial basis. But no authority and no reason has been put forward for holding that when that stage is reached the objects and activities of the non-profit earning charitable organisation cease to be charitable.If then all that is necessary to bring the objects and activities of the Appellants within the spirit and intendment of the preamble to the Statute of Elizabeth is to find analogous decided cases, I think that there is amply sufficient analogy with the series of cases dealing with burial. I would therefore allow this appeal.

Lord Guest

My Lords,I have had the advantage of reading the speeches of my noble and learned friends, Lord Reid and Lord Wilberforce. I agree with them that the appeal should be allowed.

Lord Upjohn

My Lords,In this appeal the Appellant Company claim rating relief for the years 1962/3 in respect of certain premises owned and occupied by them at Tresta3Road, Glasgow, by virtue of section 4 (2) (a) of the Local Government (Financial Provisions &c.) (Scotland) Act, 1962. That section grants a certain remission of rates in respect of lands or heritages occupied by a charity which is wholly or mainly used for charitable purposes. It is common ground between the parties that the words " charity " and " occupation for charitable purposes " are to be construed by the law of England and not by the rather broader principles applicable to the law of Scotland.The Appellant Company was incorporated in 1890 and its principal objects expressed in its Memorandum of Association are:" 3. (a) To promote reform in the present methods of Burial in Scotland, " both as regards the expense involved and the dangerous effects on the " public health." (b) To promote inexpensive and at the same time sanitary methods " of disposal of the dead, which shall best tend to render the remains " innocuous; and, in particular to promote the method known as " cremation.
" (c) To publish information on all matters tending to promote Burial " Reform or Cremation, in the form of books, circulars, reports or " transactions."
Clause 4 of the Memorandum of Association provided that the income and property of the Appellant Company should be applied solely towards the promotion of the objects of the Appellant Company as set forth in the Memorandum and that no portion should be paid or transferred directly or indirectly by way of dividend, bonus or otherwise howsoever by way of profit to members of the Company, and Clause 7 provided that upon a winding up any surplus should be given or transferred to some other organisation having objects in whole or in part similar to the objects of the Appellant Company and, if that was impracticable, then to some charitable object.The Appellant Company seems to have done little in relation to Clause 3 (c) of its Memorandum in the way of publishing matters tending to promote burial reform or cremation, but it at once provided a crematorium in Glasgow which seems to have been a great success over the years and probably this was the most sensible and practical way of promoting and advertising the benefits of cremation. The Appellant Company makes, naturally, charges for the services is performs but in accordance with the provisions of its Memorandum no part of those charges has been applied to the benefit of the members, and although the Appellant Company has substantial reserves it has not been argued before your Lordships that the objects of the Appellant Company are thereby precluded from being strictly charitable. It is quite clear that the mere making of a charge for the services rendered does not prevent an organisation, otherwise charitable, from being charitable (see Brighton College v. Marriott [1926] A.C. 192 at 204; Campbell's School case [1964] 1 W.L.R. 912 ; the Falkirk Temperance Trust case 1927 S.C. 261) and many other examples could be cited. Furthermore, it has not been suggested in this case that the Appellant Company is carrying on anything in the nature of a trade.Before your Lordships, as in the courts below, the matter has been argued upon the basis, first, does the provision of a crematorium fall within the fourth class of Lord Macnaghten's famous classification in Pemsel's case, that is: " trusts for other purposes beneficial to the community not falling under " any of the preceding heads " ([1891] A.C. at 583). But it is familiar law that not every such purpose is charitable so, secondly, the Appellant Company must establish that it falls within the spirit and intendment of the preamble to the Statute of Elizabeth (see Re MacDuff [18961 2 Ch. 451 per Lindley L.J. at 466 and Williams' Trustees v. Commissioner of Inland Revenue [1947] A.C. 447 per Lord Simonds at page 455.Upon the first point it must be remembered that Lord Macnaghten's classification was taken from Sir Samuel Romilly's argument in Morice v. Bishop of Durham (10 Vesey 522 at 531) 162 years ago when the great majority of the inhabitants of the country were living in conditions which to-day would be regarded as of the utmost squalor. The concept of purposes beneficial to the community might then appear to have the qualities of a4class and so perhaps to a lesser extent in 1891. This so-called fourth class is incapable of further definition and can to-day hardly be regarded as more than a portmanteau to receive those objects which enlightened opinion would regard as qualifying for consideration under the second heading.My Lords,I agree with the majority of the Second Division that the objects of the Appellant Company fall well within this fourth division.The disposal of the dead is, and always has been, not merely a purpose beneficial to the community but a matter of public necessity. In the old days the churchyard was there and there was no difficulty. With the explosion of population in the nineteenth century, the tidy disposal of human remains became more difficult, the church grave yard became overloaded and so Parliament enacted many provisions providing for burial places. Thus, between 1852 and 1906 no less than thirteen Burial Acts were passed (the Burial Acts 1852-1906) and there was also the Public Health (Interments) Act of 1879. It is important to remember that these Acts did not relate only to burial according to religious rites; the parties who operated these Acts might be a Burial Board or a local authority, and in later years were normally the local authority. And, although an application might be made for the consecration of part of lands set aside for this purpose to religious burial or to certain denominations, it was no part of the scheme of the Burial Acts that the ground appropriated to burial under these Acts should be on consecrated ground. I mention this because I think it is important to notice that although the Appellant Company has in fact always conducted its operations on the footing of a religious cremation with a Chapel, Garden of Remembrance and so on, its Memorandum, which must be the governing consideration, does not so confine it. But it is quite plain that Parliament recognised in the nineteenth century that disposal of human remains, with parish burial grounds becoming overfull, was a matter of national importance, as it had always been a matter of local concern, and thus gave Parliamentary recognition to the public importance of disposal of the dead. If burial was a matter for the public benefit of the community why, then, not cremation? The burning of a body, instead of burying it, is lawful at common law provided the burning does not amount to a public nuisance (see R. v. Price 12 Q.B.D. 247). So it seems to me clear that the provision of a crematorium must be just as much for the public benefit of the community as the provision of a burial ground. But if there should be any doubt about this, the Cremation Act, 1902, which provided that Local Authorities might provide crematoria in addition to burial grounds, must put all doubts upon this matter at rest. So, in my opinion, the provision of a crematorium is something which falls within the fourth classification in Pemsel's case, and I turn to the second test.This depends entirely upon the preamble to the Statute 43 Eliz. I Ch. 4. While it may seem almost incredible to anyone not familiar with this branch of the English law that this should still be taken as the test, it is undoubtedly the accepted test, though only in a very wide and broad sense, well illustrated by the observations of Lord Greene MR. in Re Strakosch [1949] Ch. 529 at page 537 which I set out at greater length:" In Williams' Trustees v. Inland Revenue Commissioners the House " of Lords has laid down very clearly that in order to come within Lord " Macnaghten's fourth class, the gift must be not only for the benefit of " the community but beneficial in a way which the law regards as " charitable. In order to satisfy the latter it must be within the " ' spirit and intendment ' of the preamble of the Statute of Elizabeth. " That preamble set out what were then regarded as purposes which " should be treated as charitable in law. It is obvious that as time " passed and conditions changed common opinion as to what was " properly covered by the word charitable also changed. This has been " recognized by the courts as the most cursory examination of the " cases shows. In order to be within the spirit and intendment of the " preamble we take it that one must find something charitable in the " same sense as the recited purposes are charitable. Lord Macnaghten's " fourth class is represented in the preamble by the repair of bridges, " etc., and possibly by the maintenance of Houses of Correction. This5" negatives any suggestion that charitable must be confined to the poor " (Verge v. Somerville).
" We have come to the conclusion that though undoubtedly of " benefit to the community the purpose under consideration is not " ' charitable ' in the sense in which the benefits to the community " instanced in the preamble are charitable. The benefit, as we " understand it, does not have to be in any way ejusdem generis with the " recited purposes but it has to be charitable in the same sense."
My Lords,I have some feeling of sympathy with the expression of opinion of Lord Strachan who said:
" In regard to the nature of the pursuer's purposes, it is of course " difficult to find a place for a crematorium in the preamble to the statute " of Elizabeth. But if there had been in the preamble any purpose in " any way akin to the disposal of the bodies of the dead, or to the public " health, or the prevention of dangers to the public health, I would have " been disposed to hold that the spirit of the preamble was wide enough " to include the pursuer's purposes. I cannot, however, find in the " preamble anything which is at all akin to these purposes."
This is a powerful argument but authority, I think, does provide a different answer. Thus in Re Vaughan 33 Ch. Div. 187 a trust for the repair of the parish church yard was held to be charitable. While this case was decided mainly upon an Act of Parliament it was also decided, as Warrington J. pointed out in the next case I shall cite, on the ground that there was no difference between a gift to repair God's House and God's acre. Then, hi Re Manser [1905] 1 Ch 68 , a trust for keeping in good order burial grounds for members of the Society of Friends was considered charitable. Warrington J. (as he then was) held that such trusts could be brought within the advancement of religion, for he said:
" I think one naturally connects the burial of the dead with religion "
. Though I doubt whether it can be said to be for the advancement of religion, that decision was plainly right because it was for a purpose beneficial to the community and was analogous to the repair of a church within the preamble of the Statute of Elizabeth. This was carried further in Re Eighmie [1935] Ch. 524 where a trust for the maintenance of a cemetery owned and managed by a local authority as a public burial ground was held to be charitable. That case was not decided on the ground that it was on consecrated ground. I see no reason to doubt the correctness of that decision though it carried the spirit and intendment of the preamble one step further.My Lords,if a trust for such a burial ground is charitable why (even if, contrary to the facts of this case, it is used for burials not in accordance with religious rites) is not the provision of a crematorium? In my view, the Appellant Company qualifies as a charity. In view of the arguments which impressed some members of the Second Division I should say that, in my opinion, to establish its charitable status the Appellant Company does not have to aver that cremation provides a better or cheaper method of disposal of human remains than that of burial.My Lords,I conclude by saying that the authorities shew that the " spirit " and intendment" of the Preamble to the Statute of Elizabeth have been stretched almost to breaking point. In the nineteenth and early twentieth century this was often due to a desire on the part of the Courts to save the intentions of the Settlor or Testator from failure from some technical rule of law. Now that it is used so frequently to avoid the common man's liability to rates or taxes this generous trend of the law may one day require reconsideration.My Lords,for the reasons I have given I would allow this appeal.

Lord Wilberforce

My Lords,The Scottish Burial Reform and Cremation Society Limited was formed in 1890 with the following main objects, as stated in its Memorandum of Association: "3. ...

" (a) To promote reform in the present methods of Burial in

6" Scotland, both as regards the expense involved and the dangerous " effects on the public health." (b) To promote inexpensive and at the same time sanitary " methods of disposal of the dead, which shall best tend to render " the remains innocuous ; and, in particular to promote the method " known as Cremation ".The Company is non-profitmaking in the sense that its income and property must be applied solely towards the promotion of its objects and that its members receive no dividends nor any distribution on a winding up.In 1890 the Company was no doubt a pioneering venture ; it must have been one of the earliest undertakings offering to provide a service of cremation for the inhabitants of Glasgow and of Scotland. Though its first object is stated as the promotion of reform in burial methods, its activity in this direction has not been by way of propaganda, but rather by way of providing services of a kind and in a manner which would progressively persuade the public of their advantages. Its undertaking has grown to the extent that it now carries out between 2,000-3,000 cremations per annum and, from an initial subscription of £ 3,492 , it has fixed assets, according to the latest accounts available to us, valued at £48,300 and further current assets. These figures show that the services offered have satisfied a need. In order to be entitled to the statutory rate remission of 50 per cent., the Company must establish first that it is established for " charitable purposes only" and, secondly, that the rateable lands and heritages in question are wholly or mainly used for charitable purposes. There is admittedly no difficulty as to the second requirement if the first is made good. The word " charitable " in this context has to be interpreted in the sense in which it is used in the law of England.Was, then, the Company established for charitable purposes only? I interpret its objects clause as meaning that the Company was formed for a general and a particular purpose: the general purpose was to promote methods of disposal of the dead which should be inexpensive and sanitary; the particular purpose (to which the Company has in fact confined itself) to promote the method known as cremation. It is this combination of purposes which has to be examined in order to see whether it satisfies the legal test of charitable purposes.On this subject, the law of England, though no doubt not very satisfactory and in need of rationalisation, is tolerably clear. The purposes in question, to be charitable, must be shown to be for the benefit of the public, or the community, in a sense or manner within the intendment of the preamble to the statute 43 Eliz. I c. 4. The latter requirement does not mean quite what it says ; for it is now accepted that what must be regarded is not the wording of the preamble itself, but the effect of decisions given by the courts as to its scope, decisions which have endeavoured to keep the law as to charities moving according as new social needs arise or old ones become obsolete or satisfied. Lord Macnaghten's grouping of the heads of recognised charity in Pemsel's case is one that has proved to be of value and there are many problems which it solves. But three things may be said about it, which its author would surely not have denied: first that, since it is a classification of convenience, there may well be purposes which do not fit neatly into one or other of the headings: secondly, that the words used must not be given the force of a statute to be construed ; and thirdly, that the law of charity is a moving subject which may well have evolved even since 1891.With this in mind, approach may be made to the question whether the provision of facilities for the disposal of human remains, whether, generally, in an inexpensive and sanitary manner, or, particularly, by cremation, can be considered as within the spirit of the statute. Decided cases help us at any rate to the point of showing that trusts for the repair or maintenance of burial grounds connected with a Church are charitable. This was, if not decided, certainly assumed in In re Vaughan 33 Ch.D. 187 as it had been earlier assumed in Attorney-General v. Blizard 21 B. 233.More explicitly, in Re Manser [1905] 1 Ch.D. 68, a trust for keeping in good order burial grounds for members of the Society of Friends was considered charitable. The opinion of Warrington J. was that such trusts7could be brought within the heading " Advancement of religion "—" I think one naturally connects the burial of the dead with religion " he said (page 74). Then in In re Eighmie [1935] 1 Ch. 524, a trust for the maintenance of a cemetery owned and managed by a local authority was held charitable. The cemetery was an extension of a closed churchyard so that the decision can be regarded as a logical step rather than a new departure. Now what we have to consider is whether to take the further step of holding charitable the purpose of providing burial, or facilities for the disposal of mortal remains, without any connection with a Church, by an independent body. I have no doubt that we should. I would regard the earlier decisions as falling on the borderline between trusts for the advancement of religion and trusts otherwise beneficial to the community. One may say either that burial purposes fall within both, or that the categories themselves shade one into the other. So I find no departure in principle in saying that purposes such as the present—which, though the Company in fact provides the means for religious observance, should be regarded as independent of any religious basis—are to be treated as equally within the charitable class.It was argued for the Respondents that the Company's purposes were neither for the benefit of the community nor, in any event, within the intendment of the preamble to the Statute of Elizabeth. One or other of these arguments was accepted by the Lord Ordinary and by three members of the Inner House. As to the first of these, there was some suggestion that the necessary basts of fact had not been shown, and that the Appellants should have averred, and if necessary proved, that their services were more inexpensive and more sanitary than normal methods of burial. In my opinion, the Appellants rightly made no such averment, for no such comparison was called for. All they had to do was to show that the provision of inexpensive and sanitary methods, and of cremation in particular, was for the benefit of the community. As to this, the facts speak for themselves; for it being admitted by joint minute that the Company had used its premises in carrying out its objects, the scale on which the Company's services were resorted to clearly showed that they met a need pf the public. And it can hardly be said that to meet a need of this character is not beneficial. The second argument can be met in two ways. First, it may be said that the same evolutionary process which has carried charily from the " repair of churches " to the maintenance of burial grounds(i) in a churchyard(ii) in a cemetery extended from a churchyard, should naturally carry it further so as to embrace the Company's objects. Secondly, and more generally, the Company's objects themselves may directly be seen to be within the preamble's spirit. The group " repair of bridges, ports, havens, causeways, churches, sea banks and highways " has within it the common element of public utility and it is of interest to note that the original label of Lord Macnaghten's fourth category " other purposes beneficial to the community " affixed by Sir Samuel Romilly in Morice v. Bishop of Durham (10 Ves. 522 at 532) was "... the advancement of objects of general public utility ". In this context I find it of significance that Parliament in 1902 by the Cremation Act of that year placed cremation, as a public service, on the same footing as burial.I regard, then, the provision of cremation services as falling naturally, and in their own right, within the spirit of the preamble.One other point requires mention. The Company makes charges for its services; to enable it, in the words of the joint agreed minute, to fulfil effectively the objects for which it was formed. These charges, though apparently modest, are not shewn to be higher or lower than those levied for other burial services. In my opinion, the fact that cremation is provided for a fee rather than gratuitously does not affect the charitable character of the Company's activity, for that does not consist in the fact of providing financial relief but in the provision of services. That the charging for services for the achievement of a purpose which is in itself shown to be charitable does not destroy the charitable element was clearly, and in my opinion rightly, decided in Commissioners of Inland Revenue v. The Falkirk Temperance Cafe Trust 1927 S.C. 261 as well as in English authorities.8I am therefore of opinion that the Appellant makes good its claim to rating relief and I would allow the appeal.

Lord Pearson

My Lords,i I agree.(32533) Dd. 196999 100 7/67 St.S.