LAW OFFICERS DEPARTMENT. Robert MacRae QC Her Majesty s Attorney General: The role of the Attorney General in relation to Charities

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1 Robert MacRae QC Her Majesty s Attorney General: The role of the Attorney General in relation to Charities 10 November 2016

2 47A Trusts for charitable or non-charitable purposes (1) Where trust property is held for a charitable or non-charitable purpose and any of the circumstances mentioned in paragraph (2) apply, the court may, on the application of a trustee or the Attorney General, declare that the property or the remainder of the property, as the case may be, shall be held for such other charitable or non-charitable purpose, as the case may be, as the court considers to be consistent with the original intention of the settlor (2) The circumstances are that (a) the purpose has, as far as is reasonably possible, been fulfilled, has ceased to exist or is no longer applicable; (b) the purpose cannot be carried out having regard to the directions given by the settlor or the spirit of the gift; (c) the purpose provides a use for only part of the trust property; (d) the property, and any other property applicable for a similar purpose, can more effectively be applied to a common purpose, regard being had to the spirit of the gift; (e) the purpose was laid down by reference to an area that is no longer a unit for that purpose, or by reference to a class of persons or to an area that is no longer appropriate, regard being had to the spirit of the gift or the practicality of administering the gift;

3 47A Trusts for charitable or non-charitable purposes (continued) (f) the purpose has been adequately provided for by other means; (g) in the case of a trust for charitable purposes, the purpose has ceased for what ever reason to be charitable; or (h) the purpose has ceased in any other way to provide a suitable and effective method of using the property, regard being had to the spirit of the gift (3) Where trust property is held for a charitable or non-charitable purpose the court may, on the application of a trustee or the Attorney General, approve any arrangement that varies or revokes the purposes of the trust or enlarges or modifies the powers of management or administration of the trustees, if it is satisfied that the arrangement (a) (b) is suitable and expedient; and is consistent with the original intention of the settlor and the spirit of the gift (4) The court shall not approve an arrangement under paragraph (3) unless it is satisfied that any person with a material interest in the trust has had an opportunity to be heard

4 General functions of the Attorney General in respect of Charity: 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 Specific functions of the Attorney General: 1 Is the representative of the Sovereign whose duty it is to protect property devoted to charitable uses 2 Is a necessary party to actions relating to charity 3 May intervene on behalf of the Crown for the purposes of protecting charities and affording advice and assistance to the Court 4 May represent absent charities where the charities can be identified and are not parties he is trustee of those charities

5 Norman origin of English Crown s role in relation to charities Where money is given to charity generally and indefinitely, without trustees or object selected, the King as parens patriae is the constitutional trustee The duty of the Crown as parens patriae is to protect charity property is executed by the Attorney General Specific duties of the Attorney General; representing absent charities Only Attorney General can represent charity generally What happens when there are individual charities, can the Attorney General represent them?

6 Variation of Charitable Interests Attorney General s role Representing and dealing with the interests of named charities; either as parens patriae or pursuant to Rule 4/4 of the Royal Court Rules 4/4 Representation of interested persons who cannot be ascertained, etc (1) In any proceedings concerning (a) (b) (c) the estate of a deceased person; property subject to a trust; or the construction of a written instrument including an enactment, the Court, if satisfied that it is expedient to do so, and that any of the conditions in paragraph (2) is met, may appoint one or more persons to represent any person (including an unborn person) or class who is or may be interested (whether presently or for any future, contingent or unascertained interest) in or affected by the proceedings

7 (2) The conditions referred to in paragraph (1) are (a) that the person, the class or some member of the class, cannot be ascertained or cannot readily be ascertained; (b) that the person, class or some member of the class, though ascertained, cannot be found; (c) that, though the person or the class and the members thereof can be ascertained and found, it appears to the Court 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 paragraph (1) for the purpose of saving expense (3) If, in any proceedings to which paragraph (1) applies, the Court exercises the power conferred by that paragraph, a judgment or order of the Court given or made when the person or persons appointed in exercise of that power are before the Court shall be binding on the person or class represented by the person or persons so appointed (4) If, in any such proceedings, a compromise is proposed and some of the persons who are interested in, or who may be affected by, the compromise are not parties to the proceedings (including unborn or unascertained persons) but (a) there is some other person with the same interest before the Court who agrees to the compromise or on whose behalf the Court sanctions the compromise; or (b) the absent persons are represented by a person appointed under paragraph (1) who so agrees, the Court, if satisfied that the compromise will be for the benefit of the absent persons and that it is expedient to exercise this power, may approve the compromise and order that it shall be binding on the absent persons, and they shall be bound accordingly except where the order has been obtained by fraud or non-disclosure of material facts

8 Human Rights considerations Conclusion