“However desirable the change may really be, the law could
not stultify itself by holding that it was for the public benefit
that the law itself should be changed. Each court in deciding
on the validity of a gift must decide on the principle that the
law is right as it stands.”
So, submits counsel, the court cannot enter into the question whether the public
interest is better served by observing the statutory prohibition contained in s.3(4) or
permitting trustees to give effect to moral obligations at the expense of their trust
funds.
31.
Counsel for the Trustees suggested in his written argument that the issue resolves
itself into three questions: (1) does the Snowden principle apply to charities
“enshrined in statute”, (2) if so is there anything special about the British Museum to
exclude the principle, and if so (3) may the Snowden principle be applied so as to
permit the Trustees to abstain from relying on the Limitation Acts 1939 and 1979.
In relation to the third submission counsel accepted in oral argument that the
Trustees did not suggest that they could do indirectly what they could not achieve
directly.
32.
Counsel for the Trustees developed these submissions in oral argument. He pointed
out that the Snowden jurisdiction was exercisable altogether out of court so that the
cases relating to Court approved schemes on which counsel for the Attorney-General
relied were not directly in point. He suggested that the jurisdiction existed to deal
with those exceptional cases in which a transaction in the public interest should not be
inhibited by too strict a reliance on the constitution of the charity, be it statutory or
merely fiduciary. He relied on the fact that the judgment of Cross J in Re Snowden
was unqualified in its application to charity generally whatever the nature of its
foundation. He suggested by reference to In re Shipwrecked Fishermen and
Mariners' Royal Benevolent Society [1959] Ch. 220 that the Snowden jurisdiction
was in aid of and supplemental to the purposes of charity in permitting in very limited
and unforeseen circumstances transactions which would otherwise constitute breaches
of trust.
33.
Counsel for the Trustees also pointed to the lack of any direct remedy for one wishing
to challenge the actions of the Attorney-General or the Trustees for he on behalf of
the Crown as parens patriae is the sole representative of the beneficial interest. He
relied on the circumstance that the exercise of the Snowden jurisdiction did not give
rise to any permanent alteration in the nature of the charity. He asked rhetorically
whether the Attorney-General is precluded by the constitution of a charity from
serving the public interest as he sees it. And why, he asked, should the trustees of a
charity be bound by their trust to do what they consider to be morally wrong? He
suggested that the statutory bar contained in s.3(4) did not oust the Snowden
jurisdiction but was a material factor to be considered at the second stage, namely,
whether in the exercise of that jurisdiction the Attorney-General should permit the
Trustees to give effect to the moral obligation they feel.
34.
Counsel for CLAE adopted the submissions of counsel for the Trustees. In addition
he observed that in Re Snowden Cross J recognised the part played by moral merits
and submitted that such observation must apply to both statutory and non-statutory
charities. And if, as he submitted, moral merits may be relevant to issues of
compromise on legal merits they must be suitable for consideration alone and in the
absence of any legal merits. He suggested that the bar imposed by s.3(4) cannot be
absolute because counsel for the Attorney-General accepted that it did not apply in the
case of a compromise. If it did not exclude cases of compromise then why, he asked,