Scottish Burial Reform & Cremation Society v Glasgow Corp [1967] UKHL 3 (26 July 1967)

SCOTTISH BURIAL REFORM AND CREMATION
SOCIETY LIMITED

v.
CORPORATION OF CITY OF GLASGOW

Lord Reid

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 of

cremation 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 Tresta

Road, 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.

” (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 a

class 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. This

” 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

” 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 trusts

could 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.