The Attorney General’s
rOle in relation to Charities
Robert
MacRae
This article considers the origin
and extent of the role of the Attorney General of Jersey in respect of the
protection of charities and charitable interests.
Introduction
1 The
Attorney General of Jersey has many roles. Some are well known, such as Legal
Adviser to the Government and to the States Assembly; Chief Prosecutor; Titular
Head of the Honorary Police. Others are less well known, including the Attorney
General’s role in respect of charities. This article is devoted to
considering this aspect of the Attorney General’s role.
2 I
propose to describe the source and general role of the Attorney General in
respect of charities; to give specific examples of the exercise of the Attorney
General’s powers and common questions and problems that arise in the
course of exercise of those powers; to consider this role in respect of trusts
established under the Loi (1862) sur les teneures
en fidéicommis et l’incorporation d’associations
(“the 1862 Law”), and finally under the Charities (Jersey) Law
2014.
The source and nature of the
Attorney General’s role
3 It
is perhaps unsurprising that the role of the Attorney-General of England and
Wales and that of the Attorney General of Jersey are described in similar terms
having regard to the common Norman origin of the Crown’s role in respect
of charities. Thus Tudor on Charities[1] states—
“Under
the feudal system imposed following the Norman conquest the Crown was liege
lord to all citizens.[] This quasi-parental relationship,
which formerly imposed upon the Crown the duty of watching over the interests
of wards[[3]] makes it the protector of charity
in general.[[4]] Therefore, as Lord Eldon said:
‘Where money is given to charity generally and
indefinitely, without trustees or objects selected, the King as parens patriae is the
constitutional trustee.[[5]]
The
duty of the Crown as parens patriae to
protect charity property is executed by the Attorney General.”
4 Tudor says[6]—
“The
Attorney General’s function in relation to charities is to represent the
Crown as parens patriae and
thus to act as the protector, both of charity in general and of particular
charities.”
5 And[7]—
“The Attorney General’s role in
relation to charities has been described in a number of ways—
· He is the representative of the Sovereign whose duty it is as parens patriae, to
protect property devoted to charitable uses.[8]
· He acts on behalf of the Crown as parens patriae and represents all the objects
of the charity.[[9]]
· As a rule, the
Attorney General is a necessary party to all actions relating to charities.[[10]] It is the duty of the Queen, as parens patriae, to
protect property devoted to charitable uses, and that duty is executed by the
Attorney General as the officer who represents the Crown for all forensic
purposes. He represents the beneficial interest, in other words the objects, of
the charity.[[11]]
· His duty (as
representative of the Crown as parens patriae) is to intervene for the purpose of protecting
charities and affording advice and assistance to the court in the
administration of charitable trusts.[[12]]
· He represents all absent charities; where those charities are
identified individual charities and are not parties, the Attorney General is in
the nature of a trustee for them.[[13]]
· Where property affected by a trust for public purposes is in the
hands of those who hold it devoted to that trust, it is the privilege of the
public that the Crown should be entitled to intervene by its officer for the
purpose of asserting, on behalf of the public generally, that public interest
and that public right which probably no individual could be found willing
effectually to assert, even if the interest were such as to allow it.[[14]]
· It is the duty of the Attorney General to assist the court, if need be,
in the formulation of a scheme.”
The Trusts (Jersey) Law 1984
6 The
Trusts (Jersey) Law 1984 (“the Trusts Law”) does not purport either
to codify or to limit the customary law role of the Attorney General in respect
of charities.
7 However,
it does contain provisions of relevance to the role. Under art 51 of the Trusts
Law the Attorney General, with the trustee, enforcer or a beneficiary, is one
of the class of persons who are entitled to make applications to the Royal Court
in relation to, inter alia, the
execution or administration of a trust, without leave of the court.
8 Further,
at art 47A of the Trusts Law, it is provided that where trust property is held
for charitable or non-charitable purposes and (inter alia) the purpose has been fulfilled, has ceased to exist, or
is no longer applicable, then the court may, on the application of the Attorney
General or trustee, declare that the property shall be held for such other
charitable or non-charitable purposes as the case may be, as the court
considers to be consistent with the original intention of the settlor. This is
(in part) a statutory codification of the cy-près rule. The Royal Court recognised the cy-près
rule prior to the Trusts Law being enacted in cases such as the Jersey Dispensary and Infirmary[15] and in Meaker v Picot.[16]
9 In
Meaker v Picot, the Royal Court considered
passages in Basnage
which appeared to recognise that, for the purposes of Norman law, a general
gift for the relief of poverty was an exception to the rule that a testator
needed to provide in his will for the specific destination of his property,
which was evidently treated by the court as clear evidence that charitable
gifts were respected under Norman law.
10 The
Royal Court went on to find that the cy-près rule was not a feature of Norman law, and
went on to adopt the following test for identifying a charitable purpose—
“To
be charitable a purpose must satisfy the following test:
1. Is
the purpose enforceable by a Court?
A
crucial test whether a purpose is charitable is whether it would be competent
for the Court to control and reform it and for the Attorney General, on behalf
of the Sovereign who, as ‘parens patriae’, is the guardian of charity, to
intervene and inform the Court in order to secure due performance of the
purpose.
2. Is
the purpose within either the express terms or the ‘spirit and
intendment’ of the preamble to the ancient statute of Elizabeth
(sometimes known as the Charitable Uses Act, 1601)?”
11 The
Attorney General is most frequently notified of or convened to Jersey
proceedings in respect of applications under art 47 of the Trusts Law to
approve the variation of the terms of a Jersey trust by the court. On such an
application, the court’s powers to give its approval on behalf of
beneficiaries is limited to, inter alia,
minors, the unborn and the unascertained.
12 The
Attorney General is often convened or notified of such proceedings where there
are charitable beneficiaries. This often arises when charitable purposes are
the default beneficiaries or may become the sole beneficiaries at the end of
the trust period. Here an issue often arises. The Attorney General has a power
and the duty to represent the inchoate interests of general charity under any
default trust and, if necessary, the interests of unascertained charities who
might be added as beneficiaries in due course. This is distinct from his duty
to intervene to protect a charity that has been managed badly.
13 But
could he and should he act for named charities (i.e. identified beneficiaries) without their consent?
14 It
might be convenient for him to do so, particularly where there are many named
charities which have not yet benefitted under a trust or a where there are a
number of connected trusts which are the subject of an application to vary.
15 This
issue was considered by Sir John Romilly MR in Ware v Cumberledge.[17] What
he said remains good law and has influenced the policy of successive Attorneys
General of Jersey when considering this issue. He said—
“It is difficult to lay down any general
rule, which shall be adapted to every case; there must be a great deal of
discretion in these matters. The general principle which regulates them I take
to be something of this description: the Attorney General represents all absent
charities, and it is sufficient to have him here to represent all absent
charities. But absent charities may obviously be of two different characters:
they may either be under gifts to specified individual charities, or to charity
generally. In case the gift is for charity generally, no one can represent it
but the Attorney General, and he must be here to represent such general
charities. When there are specified individual charities, then the Attorney
General’s presence is not universally necessary; but it is required by
the Court upon various occasions, as, for instance, where any rules are
required for the regulation of the internal conduct of the charity itself, such
as the establishment of a scheme and the like; there the Attorney General is
necessary for the purpose of aiding and assisting the Court in directing and
sanctioning the general system and principle that ought to govern charities of
those descriptions. But there are other cases where there is no question as to
the conduct or management of the charities, but only whether the charity is
entitled to a particular legacy or not. In those cases, the Attorney General is
rather in the nature of a trustee for those charities, and the Court prefers
having before it the charities beneficially interested, for the purpose of
putting their interests before the Court in the light which they consider most
favourable to them. In those cases I think it preferable that the charity
itself should appear, rather than that the Attorney General should represent
it. This appears to me to be one of that latter class of cases, and therefore
it would be better that the charity should appear. Having stated that as my
general view of the case, it is very obvious, as counsel will see, that there
may be mixed cases in which it is impossible to lay down a rule beforehand, and
in which the Court must act on the matter before it in such manner as,
according to the best exercise of its discretion and judgment, it may think
best calculated to promote justice.”
16 Accordingly, generally (although
there is no hard and fast rule) it is preferable that a specified individual
charity represent itself. However, the judgment of Sir John Romilly
does not answer the question whether, in the course of representing absent
charities, the Attorney General can or should consent to a variation of their
interests under trusts, or whether he can or should do so without the absent
charities having been given an opportunity to be parties, or receiving a
warning that their existing rights might be affected by the actions of the
Attorney General.
17 This question was dealt with by
Younger J in Re King.[18]
This was a case where two named charities were cited and had chosen not to
appear. The Attorney General was a party and there had been no order in the
probate action under the equivalent of Royal Court Rules, r 4/4 appointing
the Attorney General to represent the two charities, but the Attorney General
took upon himself the duty of representing them and compromising the
proceedings on their behalf. Under the compromise the two charities obtained
less than they would have done had the probate action been fought. The compromise
was held to bind the named charities. Younger J referred to the judgment of Sir
John Romilly MR in Ware v Cumberledge and said—
“The Attorney General did, in the
compromise which was arrived at, take upon himself the duty of protecting not
only the charitable purposes indicated—the unnamed charities interested
in residue—but he also took it upon himself to protect and bind the
interests of the charities which were specially named as pecuniary legatees,
and he compromised the proceedings on behalf of all. That compromise was duly
notified to all of these charities, and no objection was ever taken (nor is now
taken) to the propriety of that compromise. Accordingly it appears to me clear
that it is binding upon them all.”
18 In respect of general charitable
interests, the better view is that the Attorney General has a power to agree to
a variation of a trust on behalf of such interests. This is consistent with Re King.
19 Indeed, if a variation agreed to
by the Attorney General is not, in fact, for the benefit of or in the interests
of a general charity represented by him, the only person able to challenge the
decision of the Attorney General would be the Attorney General himself or one
of his successors. This is extremely unlikely and a variation agreed to by the
Attorney General in respect of the general charitable interests should
therefore be binding upon those interests.
20 The Attorney General needs to be
satisfied prior to giving his consent on behalf of such interests that the
proposed variation would be to the benefit of that interest.
21 Different principles apply in
circumstances where there are named beneficiaries and the Attorney General is
invited to give consent to a variation on their behalf.
22 There are two quite different
but related jurisdictions under which the Attorney General might represent the
named charities.
(i) as representative of the Crown as parens patriae; and
(ii)
pursuant to an order made under r 4/4 of the Royal Court Rules.
23 As
to the first, when the Attorney General is made a party to proceedings he is,
by reason of that rôle, automatically
representing the interests of the charities as representative of the Crown as parens patriae. If
the named charities are not parties in their own right, then no order under r 4/4
is necessary for the Attorney General to represent them. The Attorney General
would represent the interests of named charities simply by reason of his status
as representative of the Crown. This follows Re King where the Attorney General took upon himself the duty of
representing the charities and compromising the proceedings on their behalf.
24 However,
although the Attorney General has standing as representative of the Crown to
represent the interests of the named charities, he would not be able to consent
to the proposed variations on behalf of named charities as he would be
purporting to agree to disposal or variation of the interests of named
charities under the trust. This is a power that he is unlikely to have unless
in a particular case the named charities agree to him having that power on
their behalf. This could arise (for example) if the trustees of a named charity
were conflicted for one reason or another and decided to leave it to the
Attorney General to determine the merits of the application as he would not be
disabled by the same conflict.
25 A
distinction may be drawn between agreeing a compromise of a probate action on
behalf of named charities on terms upon which their possible right to a legacy is compromised (see Re King) and the disposal or variation of an existing right which
is undoubtedly vested in the named charities. The beneficial interests of the
named charities might be represented by the Attorney General in the latter
case, but they do not belong to him so he cannot dispose or deal with them
where their existence is not contested. Under art 47 proceedings, the court is
not concerned with the interests of the named charity—it is approving the
variation on behalf of other persons.
26 Further,
in the context of a compromise of interests under a trust, the Attorney General
should not agree to it on behalf of named charities (unless perhaps they were
very numerous) without at least first warning the named charities that he
intended to do so. In Re King, the
charities were aware of the proceedings but had elected not to appear. In that
case counsel for the Attorney General of England said—“He [the
Attorney General] cannot bind a charity by compromise behind its back
. . .”
27 Another
way of looking at the nature of the contrasting beneficial interests is to
consider that a general charitable interest cannot enforce a trust because is
not a legal person. Such an interest can only be advanced by the Attorney
General. By contrast, specific named charities are entitled to enforce a trust.
As referred to above, the Attorney General may interfere with the exercise of a
charities power if it is exercised on an improper basis.
28 As
to r 4/4, it is possible that the requirements of r 4/4(2)(c) could
be satisfied. That is that, although the named charities can be ascertained and
found, it appears to the court to be—
“expedient
(regard being had to all the circumstances, including the amount at stake and
the degree of difficulty of the point to be determined) to exercise the power
[under para (1) of the rule] for the purpose of saving expense”—
to
order that the Attorney General represent a charity or charities.
29 If
there were 50 named charities to be represented by the Attorney General without
the need for him to communicate with them, significant costs savings could be
made, and it might be expedient to appoint the Attorney General to represent
the named charities for the purpose of saving expense. However, if it was
necessary for the Attorney General to take account of the views of the 50
charities, the saving of expense might be small in comparison with the overall
costs of effecting the variations proposed.
30 However, even if the
requirements of r 4/4(2)(c) could be satisfied, the provisions of r 4(3)
or r 4(4) probably could not be, at least under an application made under
art 47.
31 By r 4/4(3), where a
representative has been appointed under the rule, a judgment or order of the
court given or made shall be binding on the person or persons represented by
the person or persons so appointed. However, this would not appear to assist in
the case of a variation under art 47 as the court is only entitled to make
orders giving its approval on behalf of persons listed at art 47(1) of the Trusts
Law—which does not extend to the interests of charities. The order of a
court is an approval of a variation under art 47 on behalf of persons specified
in art 47(1)—not an order approving the variation on behalf of persons
who consented to the variation, whether they were charities or not.
32 For the purposes of r 4/4(4),
which deals with “compromise”, generally an application for
approval of a variation will not amount to a compromise. It may be that what
has been negotiated and agreed between beneficiaries and others, possibly
including the named beneficiaries, might be described as a
“compromise” but it is not a compromise of the proceedings for
which approval is sought under art 47.
Human
rights considerations
33 Finally there is the question of
human rights. Named charities will have rights under art 1 of the First
Protocol to the European Convention on Human Rights. Article 1 of the First
Protocol provides that every natural and legal person is entitled to the
peaceful enjoyment of his possessions. This rule is qualified by the provision
which holds that “no-one shall be deprived of his possessions except in
the public interest and subject to the conditions provided for by law and by
the general principles of international law.”
34 It could be argued that the
qualification permits the Attorney General to consent to proposed variations on
behalf of named charities; the Attorney General would be acting in the public
interest and as provided for by law. However, there is a good argument that in
the absence of a clear rule of law permitting interference, the primary rule
should prevail.
Loi (1862)
sur les teneures en fidéicommis et l’incorporation
d’associations
35 The
1862 Law is concerned, inter alia,
with trusts of immoveable property falling within four categories—
(i)
for any cause of public utility;
(ii) for commercial or
industrial associations, benevolent societies and cultural and sporting
associations;
(iii) to the purpose of
furthering the Anglican or other religion;
(iv) for the founding of
schools and places of learning.
Trusts under (i) and
(ii) might in part go beyond the Statute of Elizabeth test for charitable
purposes.
36 The Attorney General is, in
effect, a gate-keeper for the purpose of trusts created under the 1862 Law as,
pursuant to art 3, persons wishing to create a trust must deliver the relevant
documents to the Attorney General in advance of making a request to the Royal
Court, and the court will only make an order authorising the creation of a
trust/incorporation having heard the Attorney General’s conclusions.
Further, pursuant to art 10 of the Law, if the objects of the trust or
incorporation can no longer be fulfilled, either wholly or in part, the Royal
Court has the power, on the application of interested parties, again having
heard the conclusions of the Attorney General, to allow the property and funds
belonging to the trust or incorporation to be applied to another object,
preferably an object related to that for which the trust or association was
originally constituted.
Charities (Jersey) Law 2014
37 Substantial parts of the 2014 Law
are yet to come into force. However, important provisions are now in force, in
particular the new “charity test” under art 5 and the new
definition of “charitable purposes” under art 6, which is
extensive.[19]
38 Article 40 is also in force,
providing that nothing in the Law shall derogate from the Attorney
General’s powers or functions which exist independently of the Law,
whether under customary law or otherwise in respect of charities.
39 The following provisions are not
yet in force; they will give the Attorney General a number of significant
powers in relation to charities registered under the Charities Law.
40 In respect of such charities, the
Attorney General’s customary law powers to intervene in the case of
misconduct in the administration of a charity is placed on a statutory footing
under art 14. This article provides that on the application of the Attorney
General or the Commissioner (the Jersey Charity Commissioner established under
art 3 of the Law) the court may grant relief if it appears to the court that
there has been misconduct in the administration of a charity or it is necessary
to exercise powers for the purpose of protecting the property of the charity.
The orders that the court may make under art 14 are extensive.
41 The restrictions on persons
disclosing information received for the purposes of the Charities Law under art
29 do not preclude disclosure of information under art 31 to the Attorney
General for the purpose of discharging his functions in relation to charities
“whether under this Law, a constitutional law, the customary law or any
other law . . .”
42 Furthermore, under art 33(4), the
Attorney General is entitled to appeal any decision of the Commissioner to the
Charity Tribunal and, whether or not he is a party to a case before the Charity
Tribunal, the Attorney General is entitled to appeal any decision of the
Charity Tribunal to the Royal Court on the grounds the decision was
unreasonable.
Conclusion
43 Accordingly, the Attorney
General’s powers in respect of charitable trusts are extensive.
44 In respect of the most common
application of the Attorney General’s powers in respect of charitable
trusts, namely by way of acting as a respondent to proceedings in relation to
trust applications before the Royal Court, the position can be summarised
thus—
(i) the Attorney General can represent general charitable
interests for all purposes including giving his consent so as to vary the
extent of such interests;
(ii)
it is more difficult for him to represent named charities unless they consent
to him doing so or they choose not to appear having been convened the Court
appoints him to do so under r 4/4.
45 However, in the event of the
Attorney General being appointed to represent the interests of charities under r 4/4,
it is difficult for him to consent to variations of a trust affecting the
beneficial interests of named charities absent the consent of the charities in
question or them choosing not to appear and he electing to represent them
nonetheless.
Robert MacRae, QC was in practice as an advocate of the Royal
Court until his appointment as HM Attorney General for Jersey in 2015.