Mr Justice Rajah :
Introduction
- The Claimant is an incorporated charity which runs Harrow School and The John Lyon School. On 11 November 2024 I handed down judgment in this case [2024] EWHC 2857 (Ch) on the Claimant's application for a cy-près scheme to alter its objects and for a declaration that its Governors had the power under the Public Schools Act 1868 ("the Public Schools Act") to amend those objects in future ("the first judgment"). I concluded that the Claimant's application for a scheme failed, there being no cy-près occasion, and that the Governors did not have power to amend the Claimant's objects as the objects were not contained in statutes made under the Public Schools Act.
- This is a further hearing to consider issues arising in consequence of the first judgment. This further judgment should be regarded as supplemental to the first judgment, to which reference should be made for an explanation of the background and the original issues. The Claimant and the Attorney General suggested the following list of issues for this hearing:
a. Does the Court have jurisdiction to make a cy-près scheme in the event of a cy-près occasion in respect of the Claimant's objects, as originally set out in the Royal Charter, under s.68, Charities Act 2011 ("CA 2011") and/or can the Claimant exercise the power under s. 280C CA 2011 to amend those objects?
b. Does the Court's jurisdiction with respect to charities otherwise enable it to make a cy-près scheme in the event of a cy-près occasion in respect of those objects whether under s.75ZA, CA 2011 or otherwise?
c. If the answer to questions (a) and (b) is no, how can those objects be amended?
d. Can ss.7 and/or 11 of the Public Schools Act be used to amend the Claimant's objects so far as they relate to The John Lyon School, including the location of The John Lyon School (whether all or part of it has to be within Harrow)?
The relevant parts of the charity's constitution
- The constitution of the charity is described in the first judgment at [5] to [27]. The salient points for the purposes of this hearing are these.
- In 1572, Queen Elizabeth I granted John Lyon a Royal Charter ("the Royal Charter"). The Royal Charter declared (as translated from Latin):
"We therefore …of our special grace, and also of our certain knowledge and mere motion do will, grant and ordain … that for ever hereafter there shall be one Grammar School in the Village of Harrow-on-the-Hill … which shall be called the Free Grammar School of John Lyon, for the bringing up, teaching and instruction of Children and Youth in Grammar, for all time hereafter coming".
It was agreed by the Attorney General (representing the interests of charity in these proceedings) and the Claimant that these words contained the objects of the charity constituted by the Royal Charter and are still the objects of the charity. I was asked to ignore certain other objects stipulated by John Lyon which they think may have been extinguished.
- The "Free Grammar School of John Lyon" referred to in the Royal Charter is now known as Harrow School.
- The Charter incorporated six persons as "the Keepers and Governors of the Free Grammar School of John Lyon in the village of Harrow-on-the-Hill" ("the Original Corporation") to govern the school, to receive and hold the property of the school and to apply it for the maintenance of the school and its property. The Claimant has succeeded to the property, trusts and liabilities of the Original Corporation.
- The Public Schools Act arose out of the report of the Clarendon Commission which was set up to examine the affairs of certain public schools including Harrow.
- By the Public Schools Act, Special Commissioners were appointed and given the power to make statutes for determining and establishing the constitution of a new governing body of Harrow School ("the New Governing Body") to act in the place of the Original Corporation.
- All powers previously vested in the Original Corporation were to be exercised by the New Governing Body on its establishment.
- The constitution of the New Governing Body was determined and established by a statute made by the Special Commissioners on 28 July 1871 ("the 1871 Statute"). While this gave the New Governing Body control of the operation of the School, it did not dissolve the Original Corporation which continued to hold and administer the assets of the charity established under the Royal Charter.
- This was corrected by the Public Schools (Shrewsbury and Harrow Schools Property) Act 1873 ("the 1873 Act"). The 1873 Act incorporated the New Governing Body and this incorporated body is the Claimant with virtually the same name as the Original Corporation and with the right to use its seal. The 1873 Act gave the Claimant the power to submit to the Special Commissioners a scheme providing for the dissolution of the Original Corporation and the transfer to the Claimant of the entire undertaking of the Original Corporation.
- The Claimant submitted such a scheme which was approved by Her Majesty in Council on 12 May 1874 ("the 1874 Scheme"). The 1874 Scheme provided:
"2. From and after the date of this Scheme, Firstly all hereditaments of whatever tenure, and all personal estate, rights of action, and property of every description, to which the [Original] Corporation shall be entitled at the date of the Scheme, and
Secondly, all powers, rights, authorities, duties and privileges, by Charter, Act of Parliament, Statute, Instrument of Endowment, custom or otherwise, at the date of this Scheme vested in or exercisable by or incumbent on the [Original] Corporation…shall be absolutely transferred to and vested in [the Claimant] and their successors, in the same manner and to the same extent as the same were vested in the [Original] Corporation at the date of this Scheme.
3. Nothing herein contained shall affect any trust or liability whatsoever affecting the premises aforesaid at the date of this Scheme, but all such trusts and liabilities shall continue and may be enforced by or against [the Claimant] and their successors, in the same manner and to the same extent as the same could have been enforced by or against the [Original] Corporation if this Scheme had not been made."
- The Claimant has therefore replaced the Original Corporation as the governing body of Harrow School and replaced it as the custodian of the property dedicated to the charitable purposes of the Royal Charter.
- The Public Schools Act gave the Claimant the power to make statutes, including statutes establishing "any subordinate or other Schools" (section 6(7)). The Claimant exercised this power, and statutes were approved in Council on 7 July 1874 ("the 1874 Statutes"). The 1874 Statutes provided for the establishment and maintenance of a "subordinate school" called The John Lyon School. That school was built in 1876 in Harrow-on-the-Hill. The Claimant therefore owns, maintains and operates two schools; Harrow School and The John Lyon School.
- The 1871 Statute and 1874 Statutes were amended on 13 occasions between 1898 to 1998. The Claimant then made Statutes, which were approved in Council on 8th June 2016 ("the 2016 Statutes"), which repeal and replace the 1871 and 1874 Statutes subject to certain savings. The 2016 Statutes are the current statutes of the Claimant. Statute 1.16 of the 2016 Statutes defines "The Objects" as "the objects of the [Claimant] as described in the Charter".
Reason for further hearing
- The cy-près jurisdiction is the Court's inherent jurisdiction to make a scheme changing the purposes for which a charity's assets are to be applied. The jurisdiction is exercised to give effect to the charitable intention of the founder of the charity, usually the donor of the charity's original assets, in circumstances where the founder's directions as to how the charity's assets are to be applied have ceased to be appropriate. At the first hearing, and in the first judgment, there was discussion of a well-established principle that the Court's scheme making jurisdiction will not be exercised in any way which conflicts with the provisions of an Act of Parliament or Royal Charter but only in aid of the statute or charter, or to supplement it; see in relation to statutes Construction Industry Training Board v Attorney General [1973] Ch 173 at 187 C-E, and in respect of Royal Charters see In re Whitworth Art Gallery Trusts [1958] 1 Ch 461. Arrangements made by Acts of Parliament and Royal Charters are treated as matters specified by a higher authority and not to be interfered with by the Courts without such interference being itself authorised by an Act of Parliament or Royal Charter. Mr Fowles labelled this principle "the higher authority principle".
- At paragraphs [45] to [49] of the first judgment I said this:
"45. The Claimant and the Attorney General have agreed that the [higher authority] principle is not engaged here, apparently on the basis that "the relevant objects are not set out in an Act of Parliament or Charter but are corporate obligations arising out of the operation of the 1874 Scheme". No substantive argument was heard on this issue as a consequence.
46. In considering this judgment, I have come to have real doubt as to whether the position agreed between the parties is correct. This is because it seems to me that the objects are set out in the Royal Charter as I have described above.
47. The Original Corporation owned its property subject to a binding obligation to apply it only for the charitable objects in the Royal Charter; see Liverpool and District Hospital for Diseases of the Heart v Attorney General [1981] Ch 193 cited with approval by Lord Walker in Chinachem Charitable Foundation Ltd v The Secretary for Justice [2015] HKCFA 35 at [38] and by Lady Arden in Lehtimaki v Cooper [2022] AC 155 at [67] to [73]. When its property was passed to the Claimant, the Claimant received it on terms that this would not affect "any trust or liability" affecting that property which "shall continue and may be enforced by or against [the Claimant] in the same manner and to the same extent as the same could have been enforced by or against the [Original] Corporation". While the Original Corporation did not hold its property on trust, the words "trust or liability" are clearly wide enough to catch the binding obligation affecting the Original Corporation's property (a point on which the Claimant and the Attorney General agreed). The Claimant therefore received the property subject to that binding obligation. At no point has the property ceased to be held for the charitable object set out in the Charter. All that has happened is that the Claimant has replaced the original Corporation as the custodian of that property.
48. If that analysis is wrong, and it is the case that the [1874][1] Scheme reestablished the charity such that the Claimant's corporate obligations are properly said to arise from the [1874] Scheme albeit incorporating by reference the objects in the Royal Charter, I still question whether it can really be said that the principle that the Court will not interfere with matters specified by a higher authority is not engaged. Apart from a technical restructuring nothing has changed. The objects of the charity are still contained in the Royal Charter.
49. However, I have formed these views without hearing argument, including argument as to whether section 75ZA has swept away the requirement for judicial restraint when dealing with charitable corporations established by Act of Parliament or Royal Charter. As appears below, a cy-près occasion has not occurred, and so the Court cannot exercise its scheme making powers in any event. It is therefore not necessary to delve further into this issue."
- It is these words which have prompted the Claimant and the Attorney General to raise the further issues at this further hearing. The Claimant is anxious to resolve uncertainty as to whether, and if so what, mechanism exists by which a change of its objects could be sought in the future. It was the resolution of that uncertainty which I am told led the Charity Commission to give permission for this claim to be brought, and relief was originally sought in the Part 8 Claim Form which would have addressed the issue of whether the objects are in an Act of Parliament or Charter. It is therefore unfortunate that the parties agreed that it was an issue that they did not need to raise with the Court at the first hearing. Notwithstanding the belated resurrection of this request for relief, I think it is right to resolve that uncertainty so as to give effective relief to the Claimant who seeks the Court's assistance in the governance of a charity.
Does the Court have jurisdiction to make a cy-près scheme in the event of a cy-près occasion in respect of the Claimant's objects, as originally set out in the Royal Charter, under s.68 CA 2011 and/or can the Claimant exercise the power under s. 280C CA 2011 to amend those objects?
- Section 68(1) – (4) CA 2011 extends the court's jurisdiction to make a cy-près scheme to charities governed by charter, conditional upon and subject to the amendment of the Royal Charter, which may be effected by Order in Council. Section 68(5)-(6) extend the court's scheme making jurisdiction to certain charities established by statute – I will refer to these provisions later.
"68 Charities governed by charter, or by or under statute
(1) Subsection (2) applies where a Royal charter establishing or regulating a body corporate is amendable by the grant and acceptance of a further charter.
(2) A scheme relating to the body corporate or to the administration of property held by the body (including a scheme for the cy-près application of any such property)—
(a) may be made by the court under the court's jurisdiction with respect to charities even though the scheme cannot take effect without the alteration of the charter, but
(b) must be so framed that the scheme, or such part of it as cannot take effect without the alteration of the charter, does not purport to come into operation unless or until Her Majesty thinks fit to amend the charter in such manner as will permit the scheme or that part of it to have effect.
…
(4) Her Majesty may, on the application of the body corporate, amend the charter accordingly by Order in Council in any way in which the charter could be amended by the grant and acceptance of a further charter; and any such Order in Council may be revoked or varied in the same manner as the charter it amends."
- Section 280C CA 2011 gives the governing body of a charity governed by a Royal Charter the power to amend the Royal Charter, again conditional upon and subject to approval by an Order in Council. The relevant parts of section 280C, excluding provisions for members resolutions where a charity has a body of members, are as follows.
"280C Power to amend Royal charter
(1) This section applies to any charity which is established or regulated by Royal charter.
(2) The charity trustees of such a charity may resolve that the Royal charter should be amended in such manner as is specified in the resolution if—
(a) they are satisfied that it is expedient in the interests of the charity to do so, and
(b) there is no power under the Royal charter to make the proposed amendment.
…
(6)A resolution under this section takes effect when it is approved by Her Majesty by Order in Council."
- Whether s.68 and section 280C are available to the Claimant depends on whether the Royal Charter is "regulating" the Claimant for the purposes of section 68 and whether the Claimant is "regulated" by the Royal Charter for the purposes of section 280C. The answer for the purposes of this case lies in whether the Royal Charter remains a constitutional document of the Claimant with legal force and effect in determining the objects of the Claimant. If so, the Attorney General accepts that the Royal Charter is regulating the Claimant at least in relation to its objects. An alteration to the Royal Charter could therefore change the Claimant's objects. The answer to that question also determines whether the tentative analysis in paragraph 47 of the first judgment (set out above) is correct.
- The Royal Charter declared a charitable purpose (in summary - the perpetual sustentation of Harrow school). It established the Original Corporation as a company whose purpose was to give effect to the terms of the Charter and envisaged the receipt of property by the Original Corporation which could only be used in accordance with the terms of the Charter and for its purposes. The Royal Charter thereby created "a charity" in both the popular and the legal meaning of the word, then and now.
- The effect of the 1873 Act and the 1874 Scheme was to transfer to the Claimant the entire undertaking of the Original Corporation and then to dissolve the Original Corporation. I hope I do Mr Fowles' submissions justice when I say that he contends that I should conclude that the intention of parliament was that these steps should effectively cancel the Royal Charter (even though he concedes that it was not formally delivered up for cancellation). Although they referred me to the Court's cy-près jurisdiction having been exercised without mention of the higher authority principle in two cases where a charter corporation had become "extinct" (The Free Grammar School of Thomas Conyers at Yarm (1853) 10 Hare v 68, 68 ER 1115 and AG v Hicks (1810, reported in Highmore, A succinct View of the History of Mortmain, 2nd ed. (1809) at pp336ff.), both Mr Fowles and Mr Smith disavowed any contention that the cessation of effect of the Royal Charter was the inevitable effect by operation of law of the transfer of the Original Corporation's undertaking and its dissolution. However, the cancellation of the Royal Charter was intended, Mr Fowles says, and the effect is that the objects of the charity have now to be found elsewhere than the Royal Charter (either in the 1874 Scheme or in "the corporate obligations of the Claimant"). An amendment of the Royal Charter would not therefore affect those objects, and so Mr Fowles says neither section 68 nor section 280C can apply.
Discussion
- Until relatively modern times there was a view that an incorporated charity held its assets on trust for its charitable purposes. Cases where that view was expressed, or which were consistent with that view, such as In re Dominion Students' Hall Trust [1947] Ch 183, In re French Protestant Hospital [1951] Ch 567, Construction Industry Training Board v Attorney General [1973] Ch 173 and Von Ernst & Cie SA v Inland Revenue Commissioners [1980] 1 WLR 468 were reviewed by Slade J in Liverpool and District Hospital for Diseases of the Heart v Attorney General [1981] 1 Ch 193. Slade J was faced with the question of who was entitled to the surplus assets of a charitable company which was in solvent liquidation. One of the arguments run by the then Attorney General was that the assets did not belong to the company. Slade J concluded at 209D-G, after reviewing the authorities:
"The expressions " trust" and " trust property " may be, and indeed have been, used by the court in rather different senses in different contexts. Examples of cases where the court has used the expression otherwise than in their strict traditional sense are to be found in Lord Diplock's review of certain earlier authorities in Ayerst v. C. & K. Construction) Ltd. [1976] A.C. 167, 179-180. In a broad sense a corporate body may no doubt aptly be said to hold its assets as a " trustee " for charitable purposes in any case where the terms of its constitution place a legally binding restriction upon it which obliges it to apply its assets for exclusively charitable purposes. In a broad sense it may even be said, in such a case, that the company is not the " beneficial owner" of its assets. In my judgment, however, none of the authorities on which Mr. Mummery has relied, including the decision in Construction Industry Training Board v. Attorney-General [1973] Ch. 173, establish that a company formed under the Companies Act 1948 for charitable purposes is a trustee in the strict sense of its corporate assets, so that on a winding up these assets do not fall to be dealt with in accordance with the provisions of section 257 et seq. of that Act. They do, in my opinion, clearly establish that such a company is in a position analogous to that of a trustee in relation to its corporate assets, such as ordinarily to give rise to the jurisdiction of the court to intervene in its affairs; but that is quite a different matter."
- He went on to conclude that nevertheless the Court had jurisdiction, which he exercised, to apply the surplus assets cy-près. (I should mention that the court's cy-près jurisdiction was originally regarded as part of its jurisdiction over trusts, and until even more modern times, and the introduction in 2022 of section 75ZA CA 2011, there was doubt in some quarters as to whether it applied to charitable companies). He said at 214F-G:
"In the present case, as I have indicated, I do not think that the assets of the association were held by them subject to a trust in the strict sense. Nevertheless, under the terms of its constitution, they were at all times held subject to a legally binding obligation, which bound it to apply them for exclusively charitable purposes. It can therefore fairly be said that the position of the association in relation to its assets has at all times been analogous to that of a trustee for charitable purposes. This in my judgment suffices to give rise to the jurisdiction of the court to order a cy-près scheme in the events which have happened."
- Slade J concluded at 215E that "The charity created by the incorporation of the association has not ceased to exist merely by virtue of its winding up." He relied for this proposition on a judgment of Buckley J in In re Vernon's Will Trusts [1972] Ch 300 at 304:
"The guild was, however, incorporated for exclusively charitable purposes, and its memorandum of association was so framed that its funds could never be distributed among its members and that in a winding up any surplus assets would continue to be applied for objects similar to those of the incorporated guild. Whether and how far it would be right to regard the funds of the incorporated guild as subject to a charitable trust, I do not pause to consider beyond pointing out that any assets which it took over from the unincorporated guild would appear to have been subject to such a trust. Trust or no trust, however, it is true to say that the assets of the incorporated guild were all effectually dedicated to charity. In no circumstances—at least without the intervention of Parliament—could any of those funds have been used otherwise than for charitable purposes of the kind for which the guild existed so long as those purposes remained practicable. Even if those purposes ceased to be practicable, the charity would not cease to exist, although its funds would be applied cy-pres. Such a charity, considered as a charity and apart from the mechanism provided for the time being and from time to time for holding its property and managing its affairs, could never cease to exist except by exhaustion of all its assets and cessation of its activities. A change merely in its mechanical aspect could not involve the charity ceasing to exist. The principle of the decisions in In re Faraker [1912] 2 Ch.488 and In re Lucas [1948] Ch. 424 is, in my judgment, equally applicable to an incorporated charity of this kind as to a charity constituted by means of a trust. In such cases the law regards the charity, an abstract conception distinct from the institutional mechanism provided for holding and administering the fund of the charity."
- Lord Walker in Chinachem Charitable Foundation Ltd v The Secretary for Justice [2015] HKCFA 35 at [38] said:
"It may be said that an incorporated charity holds its general funds "beneficially", but that expression may be a little misleading. Human beneficial owners of property, if of full age and sound mind, can dispose of their property as they like, but a charitable corporation may use its resources only for its charitable objects. So in practical terms it is not very different from a charitable trust, especially as the law imposes on the individuals who manage the corporation's affairs the same fiduciary obligations (in relation to deriving personal profit from their office, and similar matters) as are imposed on trustees: see for instance Re French Protestant Hospital [1951] Ch 567. The officers of a charitable corporation are not trustees in the strict sense, but they are in "at least an analogous position", as Buckley LJ (a judge with great expertise in charity matters) said in Von Ernst & Cie v Inland Revenue Commissioners [1980] 1 WLR 468, 479. Slade J expressed the same view in Liverpool and District Hospital for Diseases of the Heart v Attorney General [1981] Ch 193, 209."
- In Lehtimaki & Others v Cooper [2022] AC 155 at 182G – 185G, [66] to [74], Lady Arden described Liverpool and District Hospital with approval as an important case and as an example of "the determination of the courts to give effect to the charitable objects and not to allow technical matters … to prevent the gift to charity taking effect".
- These authorities put into proper perspective the role of the Original Corporation in the "charity" (as an abstract conception) created by the Royal Charter. The Original Corporation's assets were derived from gifts for the charitable purposes of the Royal Charter. It may have owned those assets legally and beneficially, but the assets were held subject to a binding obligation to be applied only for the charitable objects in the Royal Charter. The Original Corporation was a custodian of the assets it owned which were dedicated to charity for ever. Whatever happened to the Original Corporation those assets could never be applied for any other purpose without the intervention of the monarch, parliament or the court. In relation to the assets of the Original Corporation, there may not be a trust, but the analogy with a charitable trust is extremely strong.
- What the 1874 Scheme was doing was changing the custodian in much the same way as a trustee of a charitable trust might be replaced on death or retirement. When a new trustee is appointed in place of an old trustee, the appointment alone has no effect on the trusts which affect the assets of the trust. The assets continue to be held on the same trusts before and after the appointment of the new trustee. There is no question of a new settlement being created, and the original trust instrument becoming obsolete, simply because a new trustee has been appointed in place of the outgoing trustee. The question is whether the 1874 Scheme intended something different to happen here. It is relevant that the thinking at the time may well have been that a charitable corporation held its assets on trust for its charitable purposes and was therefore a trustee.
Conclusion – s. 68 and 280C
- Pursuant to the 1874 Scheme, the entire undertaking of the Original Corporation was transferred to the Claimant. All the assets (subject to the binding obligation to be applied only for the charitable objects in the Royal Charter) were transferred to the Claimant. That this included the duty to continue to hold those assets for those objects, and indeed that the Claimant was under a duty to observe the Royal Charter was made clear by the 1874 Scheme which transferred to the Claimant "all …duties … by Charter … at the date of this Scheme…incumbent on the [Original] Corporation". Moreover Clause 3 provided that the transfer of undertaking would not affect "any trust or liability" affecting the undertaking transferred which "shall continue and may be enforced by or against [the Claimant] in the same manner and to the same extent as the same could have been enforced by or against the [Original] Corporation [as] if this Scheme had not been made". While the Original Corporation did not hold its property on trust, the words "any trust or liability" are clearly wide enough to catch the binding obligation affecting the Original Corporation's property (a point on which the Claimant and the Attorney General agreed). The Claimant therefore received the property subject to that binding obligation. The Claimant has been constituted with virtually the same name as the Original Corporation and given its seal.
- All of this points clearly, to my mind, to an intention behind the 1874 Scheme that apart from the replacement of the Original Corporation with a new corporation nothing should change. The 1874 Scheme secured that at no point did the property of the Original Corporation cease to be held for the charitable objects set out in the Royal Charter. All that has happened is that the Claimant has replaced the original Corporation as the custodian of that property. Its duty is to observe the Royal Charter which continues to regulate it for the purposes of section 68 and 280C. If there is an alteration or amendment of the Royal Charter its duty is to observe the altered or amended Charter. That seems to me to be the clear intent of the 1874 Scheme.
Does the Court's jurisdiction with respect to charities otherwise enable it to make a cy-près scheme in the event of a cy-près occasion in respect of those objects whether under s.75ZA, CA 2011 or otherwise?
- In light of the conclusion that s.68 and 280C apply and provide a mechanism for the change of the Royal Charter objects it is not necessary to scour the law for some other jurisdiction which might be used. I have already mentioned that reference was made to Yarm and Hicks as examples of cases where the Court has intervened in "extinct" Charter companies. There is no need for me to explore that line of authority. I will nevertheless say something about section 75ZA because it is the logically prior question to whether there is jurisdiction in s.68 and s.280C. This is because if Mr Smith's submissions as to its construction are correct, then the higher authority principle has been swept away in relation to statutory and Charter corporations and those sections may be redundant.
- S.75ZA is headed "Power of the court and the Commission to make schemes" and provides that:
"(1) Any power of the court or the Commission to make a scheme in relation to a charity that is a charitable trust is also exercisable in relation to any other institution which is a charity.
(2) Subsection (1)—
(a) is subject to the provisions of this Act;
(b) is to be treated as always having had effect."
- Section 9(3) of CA 2011 provides that in the Act an "institution" means "an institution whether incorporated or not, and includes a trust or undertaking". Mr Smith submits that s. 75ZA is plainly not confined in terms to charitable companies formed under the Companies Acts and the words are wide enough to embrace royal charter companies. So far so good. I agree.
- But Mr Smith's submission then goes further. The Court (and the Commission in the exercise of its concurrent jurisdiction under section 69) can, he says, therefore make a cy-près scheme in respect of a Royal Charter corporation under section 75ZA. In other words, he says that s.75ZA does away with the higher authority principle in relation to Royal Charter companies.
- I do not accept that submission.
a. The subsection merely provides that the Court's and the Commission's power "is also exercisable in relation to" charities that are not trusts. That is consistent with the higher authority principle. The scheme-making jurisdiction of the Court is not ousted in relation to a corporate charity established by an Act of Parliament or Royal Charter, it is just not exercised in a way which conflicts with that Act of Parliament or Royal Charter; see Construction Industry Training Board v Attorney General [1973] Ch 173 at 187C-E per Buckley LJ.
b. Ss.68 and 73 CA 2011 were not materially repealed by the Charities Act 2022, but would be substantially redundant if s.75ZA abolished the higher authority principle, being statutory mechanisms for the amendment of Royal Charters and Acts of Parliament by scheme. Although s.73 confers power to settle a scheme on the Commission and not the Court, s.75ZA(1) makes no distinction between its effect on the jurisdictions of the Commission and the Court. Further s.68(5)-(6) which are obviously premised on the court not having jurisdiction to alter provisions in or under an Act of Parliament would be rendered otiose if section 75ZA had the meaning Mr Smith contends for. Mr Smith points to s.75ZA(2)(a) which expressly provides that the application of section 75ZA is "subject to the provisions of this Act" but those words do not give precedence to the other provisions of the Act so that S75ZA operates as some sort of default provision only if no other provision can apply. They simply mean that it gives way to contrary provision.
c. Finally, and if it were necessary to look at the mischief at which s.8, Charities Act 2022, inserting s.75ZA, was aimed, it was the resolution of the doubt that apparently still existed, notwithstanding Liverpool and District Hospital for Diseases of the Heart v Attorney-General [1981] Ch 193), as to whether the Court's cy-près jurisdiction extended to corporate charities as well as trusts: see para. 4.22, Law Commission, Technical Issues in Charity Law (Law Com No 375, 13 September 2017) the recommendations in which formed the basis for the Charities Act 2022. It was not concerned with the higher authority principle.
Remaining issues
- In light of the conclusions above the issue in paragraph 2 (c) above does not arise and 2(d) is of less significance.
- The question in 2 (d) invites the Court to consider whether ss.7 and/or 11 Public Schools Act can be used to amend the Claimant's objects so far as they relate to the John Lyon School, including whether all or part of it has to be within Harrow. In the first judgment at paragraph 72 I said:
"If the objects of a charity to which the Public Schools Act applies are contained in statutes which fall within section 7 or 11, it seems to me that those provisions permit the objects to be amended (subject to the safeguard of Privy Council approval). If the objects of a school are not in existing statutes, then there is nothing in section 7 or section 11 which allows new statutes to be created which change the objects. If, as here, the objects of the charity are set out in a Royal Charter, there is nothing in section 7 or section 11 which authorises the alteration of the Royal Charter or those objects."
- The first hearing was primarily concerned with Harrow school but the Claimant and the Attorney General were agreed that the Claimants objects were set out in the Royal Charter. The Claimant now contends that the Claimant's objects so far as they relate to The John Lyon school are to be found in the 1874 Statutes and not the Royal Charter. The Attorney General disagrees. The 1874 Statutes established the John Lyon School with the words "The Governing Body shall establish and maintain in the parish of Harrow a subordinate school; which shall be called The John Lyon School" and appropriated half the Claimant's income to the purposes of The John Lyon School. If this is where the objects of The John Lyons School are, then new statutes by the Claimant could change those objects and might be able to change the purposes for which that half of the income could be applied.
- This raises the question as to whether the objects of The John Lyon School are encapsulated within the Royal Charter purpose as a subordinate purpose. Certainly the 2016 Statutes appear to regard the only objects of both Schools as being contained in the Royal Charter. It also raises the question as to whether the Claimant should be allowed to change its position, as well as raise a completely new issue for determination, after judgment on its claim.
- These are not straightforward issues. It is not necessary to deal with them so that the Claimant has effective relief. Any scheme pursuant to s.68 or 280C CA 2011 will be able to secure a change which affects The John Lyon school. I will not consider the question in paragraph 2(d).
