Articles

The word 'charity' derives from the Latin word 'caritas' which originally meant 'Christian love of your fellow human being', but our two Elizabethan eras have provided the legal definition of charity in the United Kingdom.

The common law – that is, court-developed – definitions of 'charity' and 'charitable purpose' were by reference to the spirit and intendment of the purposes set out in the Preamble to the Charities Uses Act 1601 – the Statute of Elizabeth I.

And the reign of Her Late Majesty Queen Elizabeth II saw the introduction of a statutory definition of charity in the Charities Act 2006.

But aside from legal definitions, the reign of Her Late Majesty has seen the extension of charitable intervention to so many parts of our lives and society. The young Queen acceded to the throne fewer than four years after the founding of a modern welfare state promising cradle to grave care for all. And yet in 2022 we turn to charities to provide social care for the elderly and infirm; to feed the families of those who work but still cannot make ends meet; to educate our children (all academies are charities); to speak out for our dwindling biodiversity and degraded environment; and to celebrate the heights of human achievement.

Many are the charities which have received royal patronage over the last 70 years: by some counts the Queen had been a patron of more than 600 charities, military associations, professional bodies, and public service organisations in the United Kingdom, ranging from high-profile arts organisations such as the Royal Opera House and military-related groups like Blind Veterans UK, to charities helping the elderly, children and animals.

On her behalf, the Privy Council bestowed the royal seal of approval of Royal Charter status upon nearly 200 organisations, many of them charities, including The Royal Air Forces Association, The Royal Ballet, The Open University, The British Film Institute, Motability and the Science Council.

But many people may not be aware of the monarch’s important constitutional role for charities, which have no beneficiaries as such being trusts for a public benefit purpose, but which are subject to the constitutional protection of the Crown as 'parens patriae', the 'parent of the nation', acting through the Attorney General.

This means that in cases where its powers have not been assumed by the courts (where, for example, there is a gift by way of a trust), the Crown retains a primary jurisdiction over the application of charitable property. So where a person making a will leaves a legacy to 'charity' generally, or has named what appears at first sight to be an organisation with charitable objects but, on further investigation, none is found to exist with that name (e.g. ”cancer research”), then the Crown’s Royal Sign Manual procedure arises to direct the gift to a particular charity.

In a court case from 1675 the then Lord Chancellor upheld a £7,000 bequest "to charitable uses for the good of the poor for eve" on the ground that "the King by his prerogative could cure the uncertainty …under the sign manual". Charles II, who was known to be interested in the welfare of social and educational charities, directed that the money be applied for the benefit of the poor children of his new royal foundation in Christ’s Hospital, Horsham, who were to be taught arithmetic and the art of navigation. The Royal Mathematical School at Christ’s Hospital continues to this day.

The Sign Manual procedure may still be little known but a direct appeal to the Crown, now made by letter to the Government Legal Department, has two notable advantages which are not shared by every legal process: it is cheap and quick.

Representing the Crown as protector of charity in general and of specific charities, the Attorney General has various others functions, including representing the charitable interest in legal proceedings; instituting legal proceedings to protect a charity, including against trustees who have failed in their duties; and approving ex gratia payments by charities on purely moral grounds.

Changes to this ex gratia jurisdiction are about to be introduced into our law any month now, with the coming into force of relevant provisions of the Charities Act 2022, which will allow charities to decide for themselves to make limited payments to third parties and which will otherwise potentially streamline the process to apply to the Charity Commission for necessary authority to make such payments.

Yet this policy of enabling charities to override their legal duties where it could be fairly said that if the charity were an individual it would be morally wrong of them to refuse to make the relevant payment, remains subject to the ultimate control of the Crown, acting by the Attorney General, who is empowered to give the commission directions as to the exercise of the jurisdiction, to whom the commission could refer the most difficult of applications, and to whom a particular charity could apply for such an order if the commission refused to make one.

The Crown has now passed from mother to son but this ancient role of the monarch in relation to charities continues, at a time when King Charles III steps back from his involvement at a personal level with many charities, including those such as The Prince’s Trust which he established.

The history books are full of warfare, domination and the exercise of high politics when it comes to monarchs of old. The regimented pomp and circumstance of the State Funeral referred back to that history, but what instead epitomised the reign of Her Late Majesty was the slow, patient, good-humoured queue of humanity in the days preceding her funeral which came to pay its respects, with few tears but much gratitude to a queen who had served them so devotedly, as she had promised more than 75 years earlier on the occasion of her 21st birthday.

Two days before the funeral, at the end of that queue in Southwark Park, a BBC reporter had asked a little boy who with his family had travelled overnight from Cornwall and for whom another 13 hours outdoors awaited before entering Westminster Hall, what he thought about the Queen.

His response was simple and yet most fitting, in respect of this most charitable of monarchs:

“She was kind.”