[COURT OF APPEAL]

INCORPORATED COUNCIL OF LAW REPORTING FOR ENGLAND AND WALES v. ATTORNEY-GENERAL AND OTHERS

[1969 I. No. 5934]

Charity - Charitable purposes - Law reporting - Company limited by guarantee with objects of preparation and publication of reports of judicial decisions - Charges for publications - Carrying on business - Profits not payable to members - Whether objects exclusively charitable - Charitable Uses Act 1601 (43 Eliz. 1, c. 4), Preamble - Charities Act 1960 (8 & 9 Eliz. 2, c. 58), ss. 4 (1), 5 (3), 45 (1), 46.¹

The Incorporated Council of Law Reporting for England and Wales was a company limited by guarantee and its primary object was:

"The preparation and publication ... at a moderate price, and under gratuitous professional control, of reports of judicial decisions of the superior and appellate courts in England."

By its memorandum of association all property and income was applicable solely for the promotion of the council's objects and no portion could be paid by way of profit to its members. The memorandum authorised the payment of remuneration to editors, reporters and other persons for services rendered.
In 1966 the council applied under section 4 of the Charities Act 1960 for registration as a charity. In 1967, on refusal of the Charity Commissioners for England and Wales to register it as a charity, the council appealed under section 5 (3) of the Act of 1960 joining as parties the Commissioners of Inland Revenue and the Attorney-General. Foster J. allowed the appeal and granted a declaration that the council was entitled to registration, on the grounds that publication of law reports to enable judge-made law to be properly developed and administered by the courts was a purpose beneficial to the community.
On appeal by the Commissioners of Inland Revenue:-
Held, dismissing the appeal, (1) that the council was established for exclusively charitable purposes since its purpose was to further the development and administration of the law and to make it known or accessible to all members of the community, which was a purpose beneficial to the community and of general public utility and came within the equity of the Statute of Elizabeth I (post, pp. 87E-F,88G-H,95A-C,D-E,104E-G); that it was immaterial that publication also supplied professional men with the tools of their trade (post, p. 87E); and that the trade or business carried on by the council was not inconsistent with a charitable character in its objects since its profits were not payable to its members and the element of unselfishness was an important and well-recognised aspect of charity (post, pp. 86C-D,104B-C).
Income Tax Special Purposes Commissioners v. Pemsel [1891] A.C. 531, H.L.(E.) applied.
(2) (Russell L.J. dissenting) That the council's purposes were charitable as being for the advancement of education since the purpose of the law reports was to provide essential material for the study of the law, which was a learned profession and a science, and that remained its substantially exclusive purpose even though professional men used the knowledge acquired to earn their living (post, pp. 92B-C,93E-F,94B-D,102A-B,C,103E-G).
Decision of Foster J. [1971] Ch. 626; [1971] 2 W.L.R. 550; [1971] 1 All E.R. 436 affirmed.

The following cases are referred to in the judgments:

Attorney-General v. Heelis (1824) 2 Sim. & St. 67.
Beaumont v. Oliveira (1869) 4 Ch.App. 309.
Bowman v. Secular Society Ltd. [1917] A.C. 406, H.L.(E.).
British School of Egyptian Archaeology, In re [1954] 1 W.L.R. 546; [1954] 1 All E.R. 887.
Cranston, In re [1898] 1 I.R. 431.
General Medical Council v. Inland Revenue Commissioners, (1928) 44 T.L.R. 439, C.A.
General Nursing Council for England and Wales v. St. Marylebone Borough Council [1959] A.C. 540; [1959] 2 W.L.R. 308; [1959] 1 All E.R. 325, H.L.(E.).
Hunter v. Attorney-General [1899] A.C. 309, H.L.(E.).
Income Tax Special Purposes Commissioners v. Pemsel [1891] A.C. 531, H.L.(E.).
Inland Revenue Commissioners v. City of Glasgow Police Athletic Association [1953] A.C. 380; [1953] 2 W.L.R. 625; [1953] 1 All E.R. 747, H.L.(Sc.).
Keren Kayemeth Le Jisroel Ltd. v. Inland Revenue Commissioners [1931] 2 K.B. 465, C.A.; [1932] A.C. 650, H.L.(E.).
Lopes, In re [1931] 2 Ch. 130.
Morice v. Bishop of Durham (1804) 9 Ves. 399; (1805) 10 Ves. 522.
Royal College of Nursing v. St. Marylebone Borough Council [1959] 1 W.L.R. 1077; [1959] 3 All E.R. 663, C.A.
Royal College of Surgeons of England v. National Provincial Bank Ltd. [1951] Ch. 485; [1951] 1 All E.R. 494, C.A.; [1952] A.C. 631; [1952] 1 All E.R. 984, H.L.(E.).
Scottish Burial Reform and Cremation Society Ltd. v. Glasgow Corporation [1968] A.C. 138; [1967] 3 W.L.R. 1132; [1967] 3 All E.R. 215, H.L.(Sc.).
Smith v. Incorporated Council of Law Reporting for England and Wales [1914] 3 K.B. 674.
Smith v. Kerr [1900] 2 Ch. 511; [1902] 1 Ch. 774, C.A.
Tennant Plays Ltd. v. Inland Revenue Commissioners [1948] 1 All E.R. 506, C.A.
Thomson v. Trustees of the Honourable Society of the Inner Temple(unreported), May 30, 1967.
Westminster City Council v. Royal United Service Institution [1938] 2 All E.R. 545, D.C.
Wedgwood, In re [1915] 1 Ch. 113, C.A.

The following additional cases were cited in argument:

Attorney-General v. Brown (1818) 1 Swan. 265.
Attorney-General v. National Provincial & Union Bank of England [1924] A.C. 262, H.L.(E.).
Chartered Insurance Institute v. London Corporation [1957] 1 W.L.R. 867; [1957] 2 All E.R. 638, D.C.
Delius, decd., In re [1957] Ch. 299; [1957] 2 W.L.R. 548; [1957] 1 All E.R. 854.
Foveaux, In re [1895] 2 Ch. 501.
Geologists' Association v. Inland Revenue Commissioners (1928) 14 T.C. 271, C.A.
Hall v. Derby Sanitary Authority (1885) 16 Q.B.D. 163, D.C.
Hoare v. Osborne (1864) 33 L.J. Ch. 586.
Incorporated Council of Law Reporting for England and Wales, In re Duty on the Estate of (1888) 22 Q.B.D. 279, D.C.
Inland Revenue Commissioners v. Falkirk Temperance Cafè Trust (1926) 11 T.C. 353.
Inland Revenue Commissioners v. Forrest (1890) 15 App.Cas. 334, H.L.(E.).
Jones v. Williams (1767) Amb. 651.
Kendall v. Granger (1842) 5 Beav. 300.
London University v. Yarrow (1857) 1 De G. & J. 72.
Macduff, In re [1896] 2 Ch. 451, C.A.
National Anti-Vivisection Society v. Inland Revenue Commissioners [1948] A.C. 31; [1947] 2 All E.R. 217, H.L.(E.).
Nightingale v. Goulbourn (1847) 5 Hare 484; (1848) 2 Ph. 594.
Oppenheim v. Tobacco Securities Trust Co. Ltd. [1951] A.C. 297; [1951] 1 All E.R. 31, H.L.(E.).
Williams' Trustees v. Inland Revenue Commissioners [1947] A.C. 447; [1947] 1 All E.R. 513, H.L.(E.).
Wokingham Fire Brigade Trusts, In re [1951] Ch. 373; [1951] 1 All E.R. 454.

APPEAL from Foster J.
The Incorporated Council of Law Reporting for England and Wales ("the council"), a company limited by guarantee and not having a share capital, was incorporated on July 28, 1870, under the Companies Acts 1862 and 1867. Among the objects of the council set out in clause 3 of the memorandum of association were the following:

"1. The preparation and publication in a convenient form, at a moderate price, and under gratuitous professional control, of reports of judicial decisions of the superior and appellate courts in England. 2. The issue, periodically or occasionally, of any subsidiary or other publications relating to legal subjects which it may be considered expedient to combine with the publication of such reports, including the statutes of the realm, or any part thereof, if deemed expedient. 3. The continuation (in furtherance of the above objects) of the series of reports called 'The Law Reports' ... under their present or any other name ... and the issue periodically or occasionally of any legal digests or other publications connected with 'The Law Reports' or subsidiary thereto ... and the acquiring by purchase or otherwise ... the copyright of any (rival or) other publications of law reports ... and the making of any agreement or arrangement for the purpose of procuring the discontinuance of such reports, or the publishing thereof ... 4. The doing all such other lawful things as are incidental or conducive to the attainment of the above objects."

By clause 4:

"The income and property of the association, whencesoever derived, shall be applied solely towards the promotion of the objects of the association as set forth in this memorandum of association, and no portion thereof shall be paid or transferred, directly or indirectly, by way of dividend, bonus, or otherwise howsoever by way of profit, to ... members of the association ... Provided that nothing herein shall prevent the payment, in good faith, of remuneration of any editors, reporters, secretaries, officers or servants, of the association, or to any member of the association or other person in return for any services actually rendered to the association."

By letters dated December 1, 1966, and June 14, 1967, the council applied to the Charity Commissioners for England and Wales (the commissioners) for registration as a charity under section 4 of the Charities Act 1960, on the ground that its main object was the advancement of the administration of the law by the provision, without gain to members of the council, of a reliable series of reports, an object which was charitable both as being analogous to a gift for the building of a sessions house (a purpose accepted as charitable) and also because it was within the spirit and intendment of the Charitable Uses Act 1601, as providing a benefit, which, while not ejusdem generis with the purposes recited in the preamble thereto, was charitable in the same sense.
By a letter dated December 6, 1967, the commissioners rejected the council's application on the ground that, while it was not disputed that the advancement of the administration of the law was a charitable purpose, the work of the council could not be said to be for the advancement of the administration of the law in a way that was charitable and any contribution made by the council to the administration of law was too indirect and remote.
By an originating summons dated September 24, 1969, pursuant to R.S.C., Ord. 108, r. 4, against the Attorney-General the council sought a declaration by way of appeal under section 5 (3) of the Act of 1960 that it was entitled to be registered as a charity under section 4 of the Act on the ground that its purposes consisted exclusively of all or any of the following purposes: (1) a purpose beneficial to the community, namely, the advancement of the administration of the law; (2) a purpose beneficial to the community, namely, the exposition of the law; (3) the advancement of education. The Commissioners of Inland Revenue were joined at their own request. Foster J. granted the declaration holding that the council was established for purposes beneficial to the community and was charitable within the spirit and intendment of the preamble to the Charitable Uses Act 1601.
The Commissioners of Inland Revenue appealed on the grounds that there was no warrant for the implicit finding of the judge that the council was established exclusively for the purpose of enabling judge-made law to be properly developed and administered by the courts; and that, in any event, to enable judge-made law to be properly developed and administered by the courts was not a purpose that was within the spirit and intendment of the preamble. The council sought to affirm the judge's decision on the additional ground that the council was established for the advancement of education in a manner which was charitable at law.

H. E. Francis Q.C. and Peter Gibson for the Commissioners of Inland Revenue. [Reference was made to sections 4, 5, 45 and 46 of the Charities Act 1960.] The judge's approach was fundamentally erroneous. The court has to look at the memorandum of association alone to determine what the objects of the council are. Reliance is placed upon Tennant Plays Ltd. v. Inland Revenue Commissioners [1948] 1 All E.R. 506 and Royal College of Nursing v. St. Marylebone Borough Council [1959] 1 W.L.R. 1077. Then the court has to decide as a matter of law whether those objects are charitable: see Hunter v. Attorney-General [1899] A.C. 309. It is not permissible to look at the motives and intentions of the founders or promoters of the council, nor at the manner in which the objects are in fact carried out: see Keren Kayemeth Le jisroel Ltd. v. Inland Revenue Commissioners [1931] 2 K.B. 465; affirmed [1932] A.C. 650, H.L.(E.). In the memorandum it is not stated that the purpose of the council is to advance the administration of the law, and it was clearly not established for that charitable purpose. It is not necessary to look at extrinsic evidence to see what the council in fact does, because its purposes are clear from the memorandum. It was established to carry on the trade or business mentioned in its memorandum: see In re Duty on the Estate of Incorporated Council of Law Reporting for England and Wales (1888) 22 Q.B.D. 279. It is still a trade although profits cannot be distributed to members.
Alternatively if it is permissible to look at extrinsic evidence to determine whether or not the objects stated in the memorandum are charitable, the judge was wrong in finding that the only main purpose of the council was to enable judge-made law to be properly developed and administered by the courts. His conclusion was limited to the use made of The Law Reports in court, and overlooked the fact that they play an essential role as part of the professional equipment of practising lawyers. A major purpose for which the council was established was to serve the interests of members of the legal profession by providing them with an essential tool of their trade, and, accordingly, the council was not established exclusively for charitable purposes. The memorandum shows that the publication of reports was to be under the control of the legal profession, and that is inconsistent with the council being a charity because if it is it would be under the control of the Charity Commissioners or of the court. The objects stated in the memorandum are not clearly charitable.
Although the availability of accurate law reports is essential to the due administration of justice in the courts, more use is made of them outside the courts. They are constantly used by practising lawyers for matters which never reach court. Even in the courts the reports perform a professional function because they enable advocates to fulfil their duty. The main purpose of the council is to benefit the legal profession: see Smith v. Incorporated Council of Law Reporting for England and Wales [1914] 3 K.B. 674, per Scrutton J. at p. 681, and the report of Lord Simond's Law Reporting Committee appointed in 1940. To benefit members of a profession is not charitable: see General Medical Council v. Inland Revenue Commissioners (1928) 44 T.L.R. 439; General Nursing Council for England and Wales v. St. Marylebone Borough Council [1959] A.C. 540 and Royal College of Surgeons of England v. National Provincial Bank Ltd. [1951] Ch. 485, C.A.; [1952] A.C. 631, H.L.(E.). The council has several purposes, but providing the legal profession with reliable law reports, which are an essential part of the professional equipment is one of its main purposes.
It is not disputed that publication of The Law Reports is for the public benefit, but it does not fall within the spirit and intendment of the preamble to the Charitable Uses Act 1601. Not everything which is for public benefit is charitable. It must also be within the spirit and intendment of the preamble. To promote the proper development and administration of the law is not charitable. If it had been stated in the memorandum that the object of the council was to advance the proper development and science of the law by specified means, that would have been the sole primary object, and the actual publication and dissemination of The Law Reports would be the means of carrying out that t object. Tho position is different if no such primary object is stated. Assisting the administration of the law is the result of the council's activities, and is not the purpose for which it was established.
If Foster J. was right in finding that the council was established for the purpose of advancing the administration of the law, such a purpose although for the benefit of the community is not within the spirit and intendment of the preamble: see Scottish Burial Reform and Cremation Society Ltd. v. Glasgow Corporation [1968] A.C. 138. It is impossible to say that to advance the administration of the law falls naturally and in its own right within the spirit of the preamble. It can only be brought within on the basis of analogy. To supply members of a profession with the tools of their trade is not a sufficiently wide benefit to come within the spirit of the preamble. [Reference was made to Tudor on Charities 6th ed. (1967), p. 84]. To advance the administration of the law would be a purpose essentially political in character, because that is a function of the government or state. It is not a matter which should be left to charity. The law is not only concerned with the preservation of law and order, but also with trade, preservation of property and citizens' rights, and other matters outside the realms of charity. The contents of the preamble do not have any relation to the administration of law as such. The construction of a court house would come within the general heading of public works, and would therefore be charitable because it would benefit the community in a physical sense.
Gibson following. The purposes of the council are not exclusively charitable. It is remarkable that the council so many years after its incorporation should now claim for the first time to be a charity. Prima facie it would have made a difference if in the memorandum the council's object was stated as the promotion of the study of the science of the law, though Geologists' Association v. Inland Revenue Commissioners(1928) 14 T.C. 271 shows that even if the objects stated in the memorandum are prima facie charitable the court must still find what the true purposes are and must have regard to the persons who are intended to benefit. The court is entitled to take account of the fact that the legal profession gathered together to do something for its own benefit, although it might also benefit the public.
The claim that the administration of justice is within the scope of charity is a novel one for which there is no precedent. The administration of justice is a function of government and at the time of Elizabeth I it would not have been regarded as a function of charity.
Raymond Walton Q.C. and Spencer G. Maurice for the council. Foster J. was correct in holding that the council was a charity within the fourth category in Income Tax Special Purposes Commissioners v. Pemsel [1891] A.C. 531, 583. Alternatively it ranks as an educational charity under the second category.
The council's objects are those stated in clause 3 of its memorandum of association, which has to be construed. The vital question is whether what the council does in furtherance of its objects is something which can be classified as being of public utility and therefore charitable. Clause 3 is not ambiguous, but background evidence is admissible. The court can have regard to the situation at the time of incorporation and is entitled to look at the results of the activities which are carried on in order to determine if what the council was established to do is beneficial to the public. The council in fulfilling its objects and the hopes and intentions of its founders is thereby furthering the administration of justice. The public makes use of the services it provides. Publication of reports by the council assisted the development of the judicial doctrine of binding precedents: see Radcliffe and Cross, The English Legal System, 4th ed. (1964), pp. 365-367. That is for the public benefit because it facilitates knowledge of and certainty in the law.
The council has only one main purpose, namely the publication of The Law Reports at a moderate price available for everyone. General Medical Council v. Inland Revenue Commissioners, 44 T.L.R. 439; Royal College of Surgeons of England v. National Provincial Bank Ltd. [1952] A.C. 631; Royal College of Nursing v. St. Marylebone Borough Council [1959] 1 W.L.R. 1077 and Geologists' Association v. Inland Revenue Commissioners,14 T.C. 271 can be distinguished from the present case, because in those cases there were two main objects, one benefiting members of the body or profession and one benefiting the public, and the question in each case was which was the dominant object. An essential feature here is that members of the council derive no benefit from the association. The fact that the immediate beneficiaries from the council's activities are members of the legal profession, who take advantage of The Law Reports for the benefit of their clients, does not prevent its purposes from being charitable. Reliance is placed upon Inland Revenue Commissioners v. Forrest (1890) 15 App.Cas. 334.
If it is right that the council fulfils a public benefit in disseminating The Law Reports, which further the advancement of the law, the question is whether that is a charitable purpose within Lord Macnaghten's fourth category in Pemsel's case [1891] A.C. 531, 583.
The fourth category has developed by analogies: see Chitty J. in In re Foveaux [1895] 2 Ch. 501, 504, and Lord Reid in the Scottish Burial Society's case [1968] A.C. 138, 146. The purpose of assisting the administration of the law is analogous to the establishment of a sessions house, which is charitable: see Duke on Charitable Uses, ed. 1676, p. 109. Lord Eldon L.C. in Attorney-General v. Brown (1818) 1 Swan. 265, 297 refers to Duke as a high authority, and Leach V.-C. in Attorney-General v. Heelis(1824) 2 Sim. & St. 67, 76 treated a sessions house as a decided case. Accordingly, if an analogy is required a sessions house is sufficiently analogous for the advancement of the law by the publication of The Law Reports to be within the spirit and intendment of the preamble. It is too narrow a construction of the Statute of Elizabeth I to say that a sessions house is a public work analogous to the repair of bridges, because a sessions house is built to be used for a particular purpose and it must be part of the decision that the carrying out of that purpose is charitable. The supply of The Law Reports is part of the machinery of the advancement of the law, and is also directly analogous with houses of correction. In addition it is analogous to maintaining the efficiency of the army and police, and the preservation of order: Inland Revenue Commissioners v. City of Glasgow Police Athletic Association [1953] A.C. 380. The subject is equally interested in all aspects of the law whether connected with public order or not, and it is to the advantage of the public as a whole that the law should be properly and impartially administered from accurate and up to date source material.
Alternatively, if there is not a sufficient analogy, the proper test for the fourth category is that the activities claimed to be charitable are of general public utility, as qualified by Lindley L.J. in In re Macduff [1896] 2 Ch. 451, 467, and need not necessarily come within the spirit and intendment of the preamble. The purpose must be a general purpose, and must profit persons who would not be profited without the activity in question: see Attorney-General v. National Provincial & Union Bank of England [1924] A.C. 262. It must be for the benefit of the public and not merely of individuals, and the utility must be beneficial to the community at large or a sufficient section of it. [Reference was made to Jones v. Williams (1767) Amb. 651; Attorney-General v. Heelis (1824) 2 Sim. & St. 67; Kendall v. Granger (1842) 5 Beav. 300; Nightingale v. Goulbourn (1847) 5 Hare 484, affirmed (1848) 2 Ph. 594; London University v. Yarrow (1857) 1 De G. & J. 72; Pemsel's case [1891] A.C. 531; In re Cranston [1898] 1 I.R. 431; In re Wedgwood [1915] 1 Ch. 113; Inland Revenue Commissioners v. Falkirk Temperance Cafè Trust (1926) 11 T.C. 353 and In re Wokingham Fire Brigade Trusts [1951] Ch. 373.] Making judge-made law available is a general utility of benefit to the community. Those cases show that direct analogy with the Statute of Elizabeth I is not necessary. In re Foveaux [1895] 2 Ch. 501 was overruled by National Anti-Vivisection Society v. Inland Revenue Commissioners [1948] A.C. 31. Reliance is placed upon the Scottish Burial Society's case [1968] A.C. 138, 156.
The legal profession as a whole would constitute a sufficient section of the community to satisfy the public nature of the benefit. Oppenheim v. Tobacco Securities Trust Co. Ltd. [1951] A.C. 297 can be distinguished. Reliance is placed upon Hall v. Derby Borough Sanitary Authority (1885) 16 Q.B.D. 163.
The other possibility is that the activities of the council fall within the second category in Pemsel's case [1891] A.C. 531, 583. Smith v. Kerr [1900] 2 Ch. 511; [1902] 1 Ch. 774 shows that law can be the proper subject of an educational charity. The main object of the council is to disseminate information as to the latest state of the science of the law, and that is therefore an educational purpose. There is a distinction between an educational purpose involving public dissemination of educational material, and pure learning which is not necessarily charitable. Reliance is placed upon In re British School of Egyptian Archaeology [1954] 1 W.L.R. 546. The practitioners of any science are always learning and are continuously instructing themselves. There is an element of learning in the citation of authorities in court, because the court is being instructed in the extent and scope of the material available from which to decide the particular case. There must be a contribution to the common stock of human knowledge. The publication of The Law Reports furnishes the profession with the opportunity to make itself more learned, and that applies to academic scholars, practising lawyers and everyone concerned with the law.
N. Browne-Wilkinson for the Attorney-General addressed the court on the basis of the interests of charity as a whole, and did not support either side. The relevant question is whether the body is established for purposes exclusively charitable. Despite the word "established" in section 45 (1) of the Charities Act 1960, it is not correct to look at the position at the date when the council was incorporated, because the court must determine at the date of the application for registration for what purposes the body is then established. The motives and purposes for the establishment of the particular body are irrelevant: see Hoare v. Osborne (1864) 33 L.J.Ch. 586 and In re Delius, decd. [1957] Ch. 299. To decide whether the council's purposes are charitable regard must be had solely to its objects as stated in clause 3 of its memorandum of association. In construing clause 3 the ordinary rules of construction apply. The main object is the publication of The Law Reports, and since the charitable nature of the object is not clearly apparent the court must see if performance of it is necessarily exclusively charitable. Accordingly, if performing the objects stated in clause 3 must necessarily achieve a charitable purpose, the council is established for an exclusively charitable purpose. In cases under the fourth category the court in considering the authorised activity must inform itself of the impact on the public of the performance of the activity. The council must show that publication of The Law Reports can only have a charitable result, and evidence is admissible as to the effect of publication. That evidence shows that the necessary result of the council's activities is for the public benefit. It is immaterial that members of the legal profession also benefit, because only if benefit to the body itself is one of its objects is the charitable nature vitiated: see Royal College of Nursing v. St. Marylebone Borough Council [1959] 1 W.L.R. 1077. Benefit to the legal profession is not one of the council's objects but is merely incidental to the objects stated in clause 3. Making the law known is for the public benefit, and the fact that some members of the public benefit more than others does not prevent that object from being charitable.
The purposes of the council are analogous to those stated in the preamble to the Statute of Elizabeth I. In all cases falling within the fourth category the court must find that the activities come within the spirit and intendment of the preamble: see Williams' Trustees v. Inland Revenue Commissioners [1947] A.C. 447. If a specific public service is being provided that is necessarily within the spirit and intendment of the preamble. The purposes must be of a type which would fall within the spirit and intendment, and it is not necessary to find a precise analogy. [Reference was made to Tudor on Charities, 6th ed., p. 74.] Reliance is placed upon the approach of Lord Wilberforce in the Scottish Burial Society's case [1968] A.C. 138, 156. There is no ease in which the provision of a non-commercial specific public utility beneficial to the public at large has failed as not falling within the spirit and intendment of the preamble.
The purposes of the council are not exclusively educational, because a major function of The Law Reports is their use in the courts as the raw material by which the law is made in court, and that is not educational. However if that view is too narrow the submissions made on behalf of the council are supported.
Francis Q.C. in reply. The words "at a moderate price" in clause 3 of the memorandum of association are important. They show that the business of the council is to be conducted by way of trade. The council makes a profit, and is not merely a benevolent or philanthropic organisation. There is no difference between the business conducted by the council, and that of the publishers of the All England Reports. The fact that there is a prohibition in the council's memorandum of association against distributing profits to members does not make the council's activities charitable.
In all cases in which benefit to a profession has been held to be incidental to the benefit to the public, in the constitutions of the institutions objects were stated which were clearly charitable: see Inland Revenue Commissioners v. Forrest 15 App.Cas. 334; Royal College of Surgeons of England v. National Provincial Bank Ltd. [1952] A.C. 631 and Royal College of Nursing v. St. Marylebone Borough Council [1959] 1 W.L.R. 1077. The fact that the activities of the council result in benefit to the public or advance some charitable purpose does not mean that it was in fact established for that purpose. The objects for which an institution was established must be distinguished from the consequences flowing from the performance of those objects: see General Medical Council v. Inland Revenue Commissioners, 44 T.L.R. 439.
The question here is whether carrying out the objects stated in the memorandum results exclusively in the advancement of the administration of justice. or of education, or of both, and the use made of The Law Reports by practising lawyers is not a use for charitable purposes. Any professional skill and knowledge derived from study of The Law Reports is used by practising lawyers for the benefit of their clients and not for the benefit of the public. Clients are not a sufficient section of the public because they are identified solely by their nexus with the lawyers. The service given by the lawyers is professional and not charitable. The purpose of the council is not to educate lawyers, but to supply The Law Reports for practising lawyers who use them to provide a professional service for reward. Practising lawyers are not engaged in the administration of the law, although they may assist in the administration of justice by the courts. The Law Reports are used in ways which do not advance the administration of the law at all.
The mere publication and sale of The Law Reports does not serve an educational purpose. The Law Reports are only useful to trained lawyers and students, and it is not for the public benefit for everyone to have The Law Reports and to be able to read them. The use of The Law Reports by judges in court is not educational, because they merely have regard to them to assist in reaching a correct decision. Activities designed to benefit a particular profession by enabling members to perform their profession are not educational: see Chartered Insurance Institute v. London Corporation [1957] 1 W.L.R. 867. In so far as The Law Reports increase the knowledge of members of the legal profession, that is an incidental result and not a purpose of the council. The council sells The Law Reports to subscribers and is not concerned with the use they make of them, and therefore it would be difficult to say that the council is concerned to promote education.

October 14. The following judgments were read.

RUSSELL L.J.The question raised in this appeal is whether a company limited by guarantee incorporated on July 28, 1870, under the Companies Acts 1862 and 1867 entitled the Incorporated Council of Law Reporting for England and Wales (hereinafter called "the association") is a corporate institution which is established for purposes which are exclusively charitable according to the law of England and Wales and is subject to the control of the High Court in the exercise of the court's jurisdiction with respect to charities. If it is such, then it is a charity within the Charities Act 1960 (see sections 45 (1) and 46); and it is entitled to be entered as such on the register of charities to be maintained by the Charity Commissioners under section 4 of the Act of 1960. The association applied to be so registered: the Commissioners of Inland Revenue objected on the ground that the association was not a charity: the Charity Commissioners upheld the objection and declined to register the association: the association appealed to the High Court by the appropriate procedure, joining as parties to the appeal the Commissioners of Inland Revenue and the Attorney-General. Foster J. ([1971] Ch. 626) allowed the appeal on the ground that the association was a charity within the fourth of the categories in Income Tax Special Purposes Commissioners v. Pemsel [1891] A.C. 531, 583, this contention of the association being supported by the Attorney-General: but he did not accept the additional or alternative contention of the association that it was an educational charity, a contention which was not supported by the Attorney-General.
From this decision that the association was a charity entitled to registration as such the Commissioners of Inland Revenue appeal, and the association seeks to support the decision on the additional or alternative ground of education.
In order to see for what purposes the association was established and whether those purposes are exclusively charitable, attention must be focused upon its memorandum and articles of association, bearing in mind, of course, that purposes merely ancillary to a main charitable purpose, which if taken by themselves would not be charitable, will not vitiate the claim of an institution to be established for purposes that are exclusively charitable. Hereunder the objects clause in the memorandum must plainly play the leading role. That is in the following terms:

"The objects for which the association is established are: 1. The preparation and publication, in a convenient form, at a moderate price, and under gratuitous professional control, of reports of judicial decisions of the superior and appellate courts in England. 2. The issue, periodically or occasionally, of any subsidiary or other publications relating to legal subjects which it may be considered expedient to combine with the publication of such reports, including the statutes of the realm, or any part thereof, if deemed expedient. 3. The continuation (in furtherance of the above objects) of the series of reports called 'The Law Reports' (now in course of publication by the present Council of Law Reporting) under their present or any other name, and either in their present form and according to the present system or subject to any alterations of form or system that may be considered conducive to the promotion of the above objects; and the issue periodically or occasionally of any legal digests or other publications connected with 'The Law Reports', or subsidiary thereto, or which may be considered likely to increase the utility thereof; and the acquiring by purchase or otherwise, on such terms or conditions as shall be considered expedient, the copyright of any (rival or) other publications of law reports which may now or shall hereafter exist or be in course of publication, and the making of any agreement or arrangement for the purpose of procuring the discontinuance of such reports, or the publishing thereof, or the discontinuance of preparing reports for any such publication by any other persons. The taking over and assuming all the assets and liabilities of the existing Council of Law Reporting. 4. The doing all such other lawful things as are incidental or conducive to the attainment of the above objects."

Clause 4 of the memorandum is in the following terms:

"The income and property of the association, whencesoever derived, shall be applied solely towards the promotion of the objects of the association as set forth in this memorandum of association, and no portion thereof shall be paid or transferred, directly or indirectly, by way of dividend, bonus, or otherwise howsoever by way of profit, to the persons who at any time are or have been members of the association, or to any of them, or to any person claiming through any of them: Provided, that nothing herein shall prevent the payment, in good faith, of remuneration to any editors, reporters, secretaries, officers or servants of the association, or to any member of the association, or other person in return for any services actually rendered to the association."

The signatories to the memorandum were five of Her Majesty's counsel and two solicitors. By the articles of association membership of the council was limited to 20 in number. Eligibility for membership of the association was confined to (a) "nominated persons" (up to two nominated by each of the four Inns of Court and the Law Society), (b) up to two more members nominated: or selected by or with the approval of the council of management of the association ("the council") - called "elected members," (c) the Law Officers and President of the Law Society - called "ex officio members," and (d) (since 1951) any other persons up to five in number nominated by the council - called "co-opted members." Provision was made for retirement by rotation and resignation of membership of the association. Article 34 provided that membership of the association should ipso facto confer and be a requirement of membership of the council. By article 39 the management of the affairs of the association is vested in the council which (article 37) may appoint an executive committee of the council to which supervision of the day-to-day management of the association's affairs are delegated. I do not think that any other reference to the articles is needed.
There are some matters which require no proof. The making of the law of this country is partly by statutory enactment (including therein subordinate legislation) and partly by judicial exposition in the decision of cases brought before the courts. It cannot be doubted that dissemination by publication of accurate copies of statutory enactments is beneficial to the community as a whole: and this is not the less so because at least in many instances the ordinary member of the public either does not attempt to, or cannot by study, arrive at a true conclusion of their import, or because the true understanding is largely limited to persons engaged professionally or as public servants in the field of any particular enactment, or otherwise interested in that field. The fact that to perhaps the majority of those who acquire and study a copy of (for example) a Finance Act it constitutes what might be described as a tool of their trades or professions or avocations in no way lessens the benefit to the community that results if accurate versions of that Finance Act are published and not kept like a cat in a bag to be let out haphazard. The same is to be said of the other source of our law, judicial decisions and the reasons therefor, especially in the light of our system of precedent. It is in my view just as beneficial to the community that reliable reports of judicial decisions of importance in the applicability of the law to varying but probably recurrent circumstances, or demonstrating development in the law, should be published; and all the more so if the publication be supervised by those who by training are best qualified to present the essence of a decision correctly and to distinguish the ephemeral from the significant. To state that the publication also supplied many professional men with the tools of their trade does not seem to me in any way to detract from the benefit that accrues to the community from the fact that the law does not remain locked in the bosom of the judiciary.²
Now the first contention of the Commissioners of Inland Revenue is shortly stated. When the stated objects of the association are considered they amount to no more (it is said) than to carry on the trade of publishers and sellers of law reports: there is (it is said) no difference between the objects of the association and the objects of the publishers of the All England Reports with the one exception that the association is to make no profit from its trade that is not to be applied in the production and publication of law reports - i.e. the association is in that sense non-profit-making. This short contention does not supply the answer to the case. The fact that the association carries on a trade or business is admittedly not inconsistent with a charitable character in its objects. The difference between the two cases is in my view a vital distinction. The element of unselfishness is well recognised as an aspect of charity, and an important one. Suppose on the one hand a company which publishes the Bible for the profit of its directors and shareholders: plainly the company would not be established for charitable purposes. But suppose an association or company which is non-profit-making, whose members or directors are forbidden to benefit from its activities, and whose object is to publish the Bible; equally plainly it would seem to me that the main object of the association or company would be charitable - the advancement or promotion of religion.
It was next contended for the Commissioners of Inland Revenue that a main purpose, even if not the only main purpose, of the association is to advance the interests of the legal profession by supplying it with the tools of its trade. Reference hereunder was made to the fact that the association and its unincorporated predecessor were brought into being by members of the legal profession: to the fact that it is to be supposed that the main body of "consumers" would be such members: to the fact that Scrutton J. in Smith v. Incorporated Council of Law Reporting for England and Wales [1914] 3 K.B. 674, 681 (very much by the way) remarked that the association "publish The Law Reports for the benefit of the profession": and to the fact that Lord Simonds' Law Reporting Committee appointed by Viscount Caldecote L.C. in 1940 contained this reference to the aims of the association:

"No other purpose was to be served than to produce the best possible reports at the lowest possible price for the benefit of the profession and of the public at large."

To this may be added the comment of Professor Goodhart, a member of that committee, that the committee recommended continuance of The Law Reports in their established form "as they perform an essential function for the legal profession." I am not persuaded of the validity of this contention. It seems to me that if the publication of reliable reports of decisions of the courts is for the benefit of the community and of general public utility in the charitable sense, it is an inevitable and indeed necessary step in the achievement of that benefit that the members of the legal profession are supplied with the tools of their trade. I do not see how the benefit to the public, assuming it to be a charitable object, could otherwise be achieved. So it would be if there were a non-profit-making association under gratuitous professional supervision for the production at moderate expense of pure medical drugs or efficient surgical instruments. But the only main object or purpose in such case would be, it seems to me, the relief of the sick. We were in this connection referred to a number of cases, some on one side of the line and some on the other, where the question was whether a main object was the promotion of the interests of a professional body or organisation. I do not find these helpful. Here the association consists of members who as such can derive no conceivable benefit from their gratuitous supervision of the activities of the association. Nor to my mind is the contention now under consideration fortified, as was I think at least at one stage in argument suggested, by the fact that clause 3 of the memorandum of association does not open with the words: "The objects for which the association is established are to advance and promote the proper development of law by the following means:".
Accordingly I reject the contention that the association is not established for purposes which are exclusively charitable in so far as that contention is based upon the submission that a main purpose or object is to supply members of the legal profession with tools of their trade.
I come now to the question whether, if the main purpose of the council is, as I think it is, to further the sound development and administration of the law in this country, and if, as I think it is, that is a purpose beneficial to the community or of general public utility, that purpose is charitable according to the law of England and Wales.
On this point the law is rooted in the Statute of Elizabeth I, a statute the object of which was the oversight and reform of abuses in the administration of property devoted by donors to purposes which were regarded as worthy of such protection as being charitable. The preamble to the Statute listed certain examples of purposes worthy of such protection. These were from an early stage regarded merely as examples, and have through the centuries been regarded as examples or guideposts for the courts in the differing circumstances of a developing civilisation and economy. Sometimes recourse has been had by the courts to the instances given in the preamble in order to see whether in a given case sufficient analogy may be found with something specifically stated in the preamble, or sufficient analogy with some decided case in which already a previous sufficient analogy has been found. Of this approach perhaps the most obvious example is the provision of crematoria by analogy with the provision of burial grounds by analogy with the upkeep of churchyards by analogy with the repair of churches. On other occasions a decision in favour or against a purpose being charitable has been based in terms upon a more general question whether the purpose is or is not within "the spirit and intendment" of the Statute of Elizabeth I and in particular its preamble. Again (and at an early stage in development) whether the purpose is within "the equity" or within "the mischief" of the Statute. Again whether the purpose is charitable "in the same sense" as purposes within the preview of the Statute. I have much sympathy with those who say that these phrases do little of themselves to elucidate any particular problem. "Tell me", they say, "what you define when you speak of spirit, intendment, equity, mischief, the same sense, and I will tell you whether a purpose is charitable according to law. But you never define. All you do is sometimes to say that a purpose is none of these things. I can understand it when you say that the preservation of sea walls is for the safety of lives and property, and therefore by analogy the voluntary provision of lifeboats and fire brigades are charitable. I can even follow you as far as crematoria. But these other generalities teach me nothing."
I say I have much sympathy for such approach: but it seems to me to be unduly and improperly restrictive. The Statute of Elizabeth I was a statute to reform abuses: in such circumstances and in that age the courts of this country were not inclined to be restricted in their implementation of Parliament's desire for reform to particular examples given by the Statute: and they deliberately kept open their ability to intervene when they thought necessary in cases not specifically mentioned, by applying as the test whether any particular case of abuse of funds or property was within the "mischief" or the "equity" of the Statute.
For myself I believe that this rather vague and undefined approach is the correct one, with analogy, its handmaid, and that when considering Lord Macnaghten's fourth category in Pemsel's case [1891] A.C. 531, 583 of "other purposes beneficial to the community" (or as phrased by Sir Samuel Romilly (then Mr. Romilly) in argument in Morice v. Bishop of Durham (1805) 10 Ves. 522, 531: "objects of general public utility") the courts, in consistently saying that not all such are necessarily charitable in law, are in substance accepting that if a purpose is shown to be so beneficial or of such utility it is prima facie charitable in law, but have left open a line of retreat based on the equity of the Statute in case they are faced with a purpose (e.g. a political purpose) which could not have been within the contemplation of the Statute even if the then legislators had been endowed with the gift of foresight into the circumstances of later centuries.
In a case such as the present, in which in my view the object cannot be thought otherwise than beneficial to the community and of general public utility, I believe the proper question to ask is whether there are any grounds for holding it to be outside the equity of the Statute: and I think the answer to that is here in the negative. I have already touched upon its essential importance to our rule of law. If I look at the somewhat random examples in the preamble to the Statute I find in the repair of bridges, havens, causeways, sea banks and highways examples of matters which if not looked after by private enterprise must be a proper function and responsibility of government, which would afford strong ground for a statutory expression by Parliament of anxiety to prevent misappropriation of funds voluntarily dedicated to such matters. It cannot I think be doubted that if there were not a competent and reliable set of reports of judicial decisions, it would be a proper function and responsibility of government to secure their provision for the due administration of the law. It was argued that the specific topics in the preamble that I have mentioned are all concerned with concrete matters, and that so also is the judicially accepted opinion that the provision of a court house is a charitable purpose. But whether the search be for analogy or for the equity of the Statute this seems to me to be too narrow or refined an approach. I cannot accept that the provision, in order to facilitate the proper administration of the law, of the walls and other physical facilities of a court house is a charitable purpose, but that the dissemination by accurate and selective reporting of knowledge of a most important part of the law to be there administered is not.
Accordingly the purpose for which the association is established is exclusively charitable in the sense of Lord Macnaghten's fourth category. I would not hold that the purpose is purely the advancement of education: but in determining that the purpose is within the equity of the Statute I by no means ignore the function of the purpose in furthering knowledge in legal science.
I would dismiss the appeal.

SACHS L.J.The right of the Incorporated Council of Law Reporting for England and Wales to be registered as a charity under section 4 of the Charities Act 1960 depends on whether it is one "which is established for charitable purposes": see the definition of "charity" in section 45 (1). By section 46 "charitable purposes" is defined as meaning "purposes which are exclusively charitable according to the law of England and Wales." For the best part of four centuries the question whether the purposes of any given trust or institution are charitable has been decided by reference to the preamble to the Charitable Uses Act 1601 - "the Statute of Elizabeth I." Since 1891 the courts have followed the guidance given in the classic speech of Lord Macnaghten in Pemsel'scase [1891] A.C. 531, 583 where it is stated that "'Charity' in its legal sense comprises four principal divisions": in every case since then the issue has been whether the purposes of any given trust or institution fell within one of those divisions. The result of the present case depends on whether the purposes of the council fall within the second - "trusts for the advancement of education," or alternatively within the fourth - "trusts for other purposes beneficial to the community" not falling within any of the other heads.
To come to a conclusion whether those purposes fall within either of the two above divisions - and, in particular, whether it falls within the fourth - it is necessary to have regard to what since the judgment of Sir William Grant M.R. in Morice v. Bishop of Durham (1804) 9 Ves. 399, 405 has been termed the "spirit and intendment" of the above preamble. words commonly regarded as having the same meaning as "the equity of the statute." It so happens that there are available to us through judgments given in open court the contents of two documents substantially contemporaneous with the Statute of Elizabeth I which throw useful light both as to the spirit and intendment of that Statute in relation to administration of the law in general and to the word "education" in reference thereto: the charters of an Inn of Chancery (Clifford's Inn) and an Inn of Court (Inner Temple) dated respectively 1618 and 1608. It is, however, preferable first to approach each of the questions that arise in the instant case apart from what can be learnt from these documents.
Before considering more closely what are the answers to these questions with the aid of the education to be derived from studying the judgments in the 41 reports cited to us and the mass of learning shown to have been devoted, at any rate over the last two centuries, to the relevant problems, it is convenient at the outset to mention some points which have often been repeated in those judgments.
First, the word "charity" is "of all words in the English language ... one which more unmistakeably has a technical meaning in the strictest sense of the term, ... peculiar to the law" (per Lord Macnaghten in Pemsel's case [1891] A.C. 531, 581), one that is "wide, elastic" (per Lord Ashbourne C. in In re Cranston [1898] 1 I.R. 431, 442), and one that can include something quite outside the ordinary meaning the word has in popular speech (compare Lord Cozens-Hardy M.R. in In re Wedgwood [1915] 1 Ch 113, 117). It is thus necessary to eliminate from one's mind a natural allergy, stemming simply from the popular meaning of "charity," to the idea that law reporting might prove to be a charitable activity. Secondly, it is clear that the mere fact that charges on a commercial scale are made for services rendered by an institution does not of itself bar that institution from being held to be charitable - so long, at any rate, as all the profits must be retained for its purposes and none can enure to the benefit of its individual members: compare Scottish Burial Reform and Cremation Society Ltd. v. Glasgow Corporation [1968] A.C. 138. Thirdly, that there have, over at any rate the past century, been a number of references to the oddity that the tests by which the courts decide whether an institution is charitable depend entirely upon the preamble to the Statute of Elizabeth I. The most recent is one opining that this state of affairs was "almost incredible to anyone not familiar with this branch of the English law": per Lord Upjohn in Scottish Burial Reform and Cremation Society Ltd.'s case at p. 151. To this I will return later.
Turning now to the points of substance argued before us, there came in limine the question as to what material we were entitled to look at to determine whether the purposes of the council were charitable. Mr. Francis contended that in substance the court could and should only look at clause 3 of the memorandum of association and in particular at its important first sub-paragraph:

"The objects for which the association is established are: (1) the preparation and publication, in convenient form, at a moderate price, and under gratuitous professional control, of reports of judicial decisions of the superior and appellate courts in England."

This contention involved the proposition that we could neither look at any of the facts to which Foster J. [1971] Ch. 626, 639 referred under the heading of "the historical background," nor at any available evidence as to what at any time since July 1870 had been the use to which The Law Reports are put. That in effect would mean looking at clause 3 (1) as if it were situate in a vacuum. That cannot be right.
Moreover he went on to submit that (a) the courts cannot look at the motives of the founders in order to show the purposes of an institution - at any rate, when those purposes as otherwise ascertained might be shown not to be charitable, and (b) the absence in the opening phrase of clause 3 of general words such as "for the purpose of the advancement and promotion of the science of law" was fatal to the council's claim even if on the facts it was shown that that was the exclusive purpose of their activities and that that purpose was charitable.
Whilst the first of those submissions was correct, (see Keren Kayemeth Le Jisroel Ltd. v. Inland Revenue Commissioners [1931] 2 K.B. 465, perLawrence L.J., at p. 484), the second was not. The courts look at the substance of what is being effected.
A further question discussed was whether the use of the words "is established" in the section 45(1) definition of "charity" is to bind the court to look only at facts as existing at the date the Act of 1960 came into force, or whether the court could or should look only at the facts as at the date of the incorporation of the council. It makes no practical difference in the present case whether one looks at-the circumstances of 1870 or of 1960, but to my mind it is the foundation date that matters when considering whether an institution is established for charitable purposes.
Whilst appreciating what has been said as to the courts not being permitted, where plain language is used in a charter or memorandum, to admit extrinsic evidence as to its construction, it is yet plain from the course adopted by the courts in many cases that-they are entitled to and do look at the circumstances in which the institution came into existence and at the sphere in which it operates to enable a conclusion to be reached on whether its purposes are charitable. Such matters were likewise regularly taken into account over the 117 years of the operation of the Scientific Societies Act 1843, when the issue was whether buildings belonged "to any society instituted for purposes of science, literature or the fine arts exclusively."
The necessity for this course is all the more obvious when the purposes of an ancient institution become the subject of examination, remembering that if it started as a charity it so remains. An example of the above approach is to be found in Smith v. Kerr [1900] 2 Ch. 511; [1902] 1 Ch. 774 (the Clifford's Inn case) where at first instance Cozens-Hardy J. fully examined the circumstances affecting Clifford's Inn, and Sir Richard Collins M.R. on appeal followed the same course, to ascertain the purpose to which the funds were to be applied. (The question whether in fact it has applied or is applying some of its funds to non-charitable purposes is, of course, a separate issue which arises when tax or rate exemptions are under consideration.)
As to the circumstances in which the council came into existence and the sphere in which it has since operated, the facts are admirably marshalled in the affidavit of Professor Goodhart with the accustomed lucidity of that eminent jurist. Reference can also be made to the report in 1853 of the Society for Promoting the Amendment of the Law, an extract from page 4 of which is aptly cited by Foster J. [1971] Ch. 626, 640. In the main the relevant circumstances and sphere are within judicial knowledge and need no detailed exposition in this judgment. The kernel of the matter is the vital function of judge-made law in relation not only to the common law and to equity, but to declaring the meaning of statutory law. No one - layman or lawyer - can have reasonably full knowledge of how the law affects what he or his neighbours are doing without recourse to reports of judicial decisions as well as to the statutes of the realm.
What in that state of affairs is the purpose of law reports? There is in substance only one purpose. To provide essential material for the study of the law - in the sense of acquiring knowledge of what the law is, how it is developing and how it applies to the enormous range of human activities which it affects.
At this juncture it is apposite to recall that the profession of the law is a learned profession. It was one of the earliest to be recognised as such - well before the Statute of Elizabeth I: to establish that point there is no need to have recourse to examples of this recognition such as the traditional House of Commons appellation "honourable and learned" to members of the profession. Similarly it is plainly correct to speak of law as a science and of its study as a study of science in the same way as one speaks of the study of medicine or chemistry. If further exemplification were needed of the categories of learning and science the pursuit of which have been held to be charitable, one can turn to the names of the institutions listed in Tudor on Charities, 6th ed. (1967), p. 29: there one finds such divers names as the Royal Literary Society, the British School of Egyptian Archaeology and the Institution of Civil Engineers That the law is such a science happens to be illustrated by Sir Frederick Pollock's celebrated essay on The Science of Case Law (1882): but this merely provides from within the profession an authoritative view which plainly accords in principle both with the decisions affecting the above cited institutions and that under the Scientific Societies Act 1843 in Westminster City Council v. Royal United Service Institution [1938] 2 All E.R. 545, 549. It may at this point be of relevance to note that Lord Macnaghten's phrase "advancement of education" has consistently been taken to be an enlargement of the phrase "advancement of learning" used by Sir Samuel Romilly for his second division of charities in Morice v. Bishop of Durham (1805) 10 Ves. 522, 531: in other words, there can be no question but that the latter is included in the former, as is illustrated by the authorities.
Against that background I turn to the question whether the council's purposes are educational. It would be odd indeed and contrary to the trend of judicial decisions if the institution and maintenance of a library for the study of a learned subject or of something rightly called a science did not at least prima facie fall within the phrase "advancement of education," whatever be the age of those frequenting it. The same reasoning must apply to the provision of books forming the raw material for that study, whether they relate to chemical data or to case histories in hospitals: and I can find no good reason for excluding case law as developed in the courts. If that is the correct approach, then when the institution is one whose individual members make no financial gain from the provision of that material and is one which itself can make no use of its profits except to provide further and better material, why is the purpose not charitable?
On behalf of the Attorney-General the only point taken against this conclusion was that the citation of the reports in court cannot be educational - in part, at any rate, because of the theory that the judges are deemed to have complete knowledge of the law. For the Commissioners of Inland Revenue the main contention was that the use by the legal profession of the reports was in general (not merely when in court) a use the purpose of which was to earn professional remuneration - a use for personal profit: and that it followed that the purpose of the council was not charitable.
Taking the latter point first, it is, of course, the fact that one of the main, if not the main, uses to which law reports are put is by members of the legal profession who study their contents so as to advise clients and plead on their behalf. Those reports are as essential to them in their profession as the statutes: without them they would be ill equipped to earn professional fees. Does it follow, as submitted by Mr. Francis, that a main purpose of the reports is the advancement of professional interests and thus not charitable? The argument put thus is attractive, not least to those who, like myself, are anxious not to favour or to seem to favour their one-time profession. But the doctor must study medical research papers to enable him to treat his patients and earn his fees; and it would be difficult indeed to say that because doctors thus earn their emoluments the printing and sale of such papers by a non-profit making institution could not be held to be for the advancement of education in medicine.
Where the purpose of producing a book is to enable a specified subject, and a learned subject at that, to be studied, it is, in my judgment, published for the advancement of education, as this, of course, includes as regards the Statute of Elizabeth I the advancement of learning. That remains its purpose despite the fact that professional men - be they lawyers, doctors or chemists - use the knowledge acquired to earn their living. One must not confuse the results flowing from the achievement of a purpose with the purpose itself, any more than one should have regard to the motives of those who set that purpose in motion.
As to the point that the citation of reports to the judiciary is fatal to the council's claim, this, if independent of the contention concerning professional user to earn fees, seems to turn on the suggestion that as the judges are supposed to know the law the citations cannot be educative. That, however, is an unrealistic approach. It ignores the fact that citation of authority by the Bar is simply a means by which there is brought to the attention of the judge the material he has to study to decide the matter in hand: in this country he relies on competent counsel to quote the extracts relevant to any necessary study of law on the points in issue, instead of having to embark on the time consuming process of making the necessary researches himself. Indeed, it verges on the absurd to suggest that the courteous facade embodied in the traditional phrase "as, of course, your Lordship knows" can be used to attempt to conceal the fact that no judge can possibly be aware of all the contents of all The Law Reports that show the continuing development of our ever changing laws. The Law Reports (including volume 1 of the Weekly Law Reports) for 1970 alone contain some 5,200 pages: incidentally, if one confined one's views solely to the three volumes of the Weekly Law Reports there would still remain over 4,000 pages. For my part I feel no diffidence in expressing my indebtedness to counsel in the instant case, as I have done in other cases this term dealing with other subjects, for educating me in the law of charitable purposes by the citation of the 41 authorities previously mentioned.
For these reasons I reject the contentions that the user of The Law Reports by the legal profession for earning fees of itself results in the purposes of the council not being charitable and thus return to the question whether they are charitable on the footing that their substantially exclusive purpose is to further the study of the law in the way already discussed. Such a purpose must be charitable unless the submission that the advancement of learning is not an advancement of education within the spirit and intendment of the preamble is upheld: but for the reasons already given that submission plainly fails. Accordingly, having regard to the fact that the members of the council cannot themselves gain from its activities, its purposes in my judgment fall within the second of Lord Macnaghten's divisions.
Despite the above conclusion, it seems desirable to consider as compactly as is practicable whether had the council's purpose not fallen within the second division it would none the less have come within the fourth as being beneficial to the community. The Charity Commissioners, after a year's consideration of the council's application to be registered as a charity, wrote a letter dated December 6, 1967, which contained the following phrase, "the commissioners did not dispute that the advancement of the administration of law was a charitable purpose." The Attorney-General supports that view: the Commissioners of Inland Revenue oppose it. Foster J. [1971] Ch. 626 rejected the contention of the Commissioners of Inland Revenue.
Being myself convinced that the correct approach is that which Foster J., at p. 647, referred to as "Lord Wilberforce's wider test" (see the Scottish Burial Society case [1968] A.C. 138, 156) - a test that clearly also attracted Lord Reid (see pp. 146-147) with whom Lord Guest agreed, at p. 148 - I do not propose to consider the instant case on the basis of analogies. The analogies or "stepping stones" approach was rightly conceded on behalf of the Attorney-General not to be essential: its artificiality has been demonstrated in the course of the consideration of the numerous authorities put before us. On the other hand, the wider test - advancement of purposes beneficial to the community or objects of general public utility - has an admirable breadth and flexibility which enables it to be reasonably applied from generation to generation to meet changing circumstances: it has thus such patent advantages that for my part I appreciate the wisdom of the legislature in refraining from providing a detailed definition of charitable purposes in the Act of 1960 and preferring to allow the existing law to be applied. Any statutory definition might well merely produce a fresh spate of litigation and provide a set of undesirable artificial distinctions. There is indeed much to be said for flexibility in such matters.
The first question to be considered in relation to the wider test is whether the advancement of the administration of the law in its broad sense (which would include the elucidation, proper application and betterment of the law) is something beneficial to the community. To pose that question to one whose function it is to administer the law provokes unease and a tendency to lean over backwards to avoid giving an affirmative reply. But such a mental posture is no more conducive to a balanced view than to elegance. Looking at the issue squarely and attempting to use the eyes of the generality of subjects of either Elizabeth I or Elizabeth II there is, however, manifestly only one answer - of course it is beneficial to the community.
The answer being eminently a matter of first impression derived from an overall view of the preamble coupled with the general trend of some centuries of decisions, no useful purpose can be served by citation of specific authorities. It is an impression formed without reference to the contents of either of the two previously mentioned charters, to which I will, however, return.
Next comes the question whether the particular purpose of the council's activities sufficiently contribute to that advancement. Does it benefit a sufficiently wide section of the community? As satisfactory administration of the law in practice depends on there being a proper system of law reporting, it can well be said that the whole community benefits from the purposes of the council: but even if the benefits were confined to those who have to make judicial decisions and to the members of the legal profession advising clients and appearing for them in court, none the less a sufficiently large section of the community would derive the relevant benefits.
Adopting the test propounded by Russell L.J., I next turn to consider whether there is any reason for excluding these benefits from the range of those that are capable of being classified as charitable, and can find no such reason.
Finally as regards this head comes the question whether the contribution is made in a charitable manner. This point having been fully discussed in the judgments of my brethren to an effect with which I agree, it is not necessary to go over the ground again. The way in which the council operates qualifies it for inclusion amongst charities as defined by the Act of 1960 once it is shown that its purposes can properly be said to be charitable if operated in a charitable manner.
Accordingly if, contrary to my view, the purposes of the council do not fall within the second division, they are none the less charitable because they would then fall within the fourth.
In conclusion it seems appropriate to return to the contents of the two charters granted within a score of years of the enactment of the Statute of Elizabeth I. On the footing that it is permissible to refer to them - and quite rightly, to my mind, no objection was taken before us to this being done - we are in the same position as was this court in Smith v. Kerr [1902] 1 Ch. 774, where Sir Richard Collins M.R. said, at p. 778:

"we are not left to speculation, nor have we to look for obscure hints from remote times, because it so happens that we have a most authoritative contemporary record "

There he referred to Lord Coke's account of the functions of Clifford's Inn: here we can look at the accounts in two royal charters of what was regarded as beneficial to the "Commonwealth" and "Realm of England."
Rather than merely cull selected extracts from these two charters, it has seemed best to append to this judgment a full note of so much of them as has been set out and discussed in the respective judgments of Collins M.R. in Smith v. Kerr and of the deputy judge of the Mayor's and City of London Court in Thomson v. Trustees of the Honourable Society of the Inner Temple (unreported), May 30, 1967. The passages in the Clifford's Inn charter sidelined 1, 2 and 4 and the Inner Temple charter 5 and 8 speak for themselves: not least the last mentioned reference to "the welfare of this Realm of England flourishing for so many ages by the administration of the said Laws." Taken as a whole these documents of themselves provide compelling and perhaps conclusive evidence that advancement of the administration of the law was regarded as beneficial to the community in the first quarter of the seventeenth century.
Though the contents of these charters have been cited primarily in relation to Lord Macnaghten's fourth division, they also may be said to provide material touching the second. The references in the Inner Temple charter (sideline 10) to the "Entertainment and Education of the Students and Professors of the Laws" when coupled with the earlier passages (sidelines 6 and 7) and phrases in the Clifford's Inn charter such as the "furtherance of the Practisers and Students of the Common Law" (sideline 3) are in point, having regard to the fact that "professors" appears to mean "those who profess the law."
Accordingly I would dismiss this appeal.

APPENDIX

Charters of Clifford's Inn and the Honourable Society of the Inner Temple as set out and discussed in (a) Smith v. Kerr [1902] 1 Ch. 774 and (b) Thomson v. Trustees of the Honourable Society of the Inner Temple(unreported), May 30, 1967, in the respective judgments of Collins M.R. and the deputy judge of the Mayor's and City of London Court: (a) Clifford's Inn.
In Smith v. Kerr [1902] 1 Ch. 774, 776, Sir Richard Collins M.R. said:
"The material words are these. After naming the parties, Lord Cumberland and Lord Clifford being the two grantors, it witnessed that the grantors

'having an honourable intent and care that the capital messuage commonly called Cliffords Inn before mentioned, with the appurtenances thereto belonging being the ancient inheritance of the said Earl and Lord Clifford and of their ancestors, and which hath been for many years heretofore by the allowance of the said Earl and his ancestors the Earls of Cumberland and Lord Cliffords used and employed as an Inn of Chancery
(1) for the furtherance of the study and practice of the Common Laws of this His Majesty's Realm of England, and during all that time hath been ordered and governed by the Principal and Rules of the said House for the time being in very good sort and with great (2) discretion both to the good of the Commonwealth and to the honour of the said Earl and Lord Clifford and their ancestors, may now upon the humble suit and earnest desire of the said Principal and Rules and others the Practisers and students of the said Society be assured estated and settled as' - I think that means 'so as' - 'the same shall and may for ever hereafter continue and be employed as an Inn of Chancery for the furtherance of the
(3) Practisers and Students of the Common Laws of this Realm as aforesaid And that the Principal Rules and other the gentlemen of the said society may from henceforth be assured of a certain estate therein Do principally for that purpose intent and consideration and for and in consideration of the sum of 600 l to them by' - here follow the names of 13 persons - 'for and on behalf of themselves and the rest of the gentlemen of the same Society of Clifford's Inn aforesaid at or before the sealing and delivery of these presents well and truly satisfied contented and paid' -

here follows a receipt and a provision for a common recovery to the uses, intents, and purposes thereafter in the deed mentioned, and a grant of the premises, with certain exceptions, to be held by two trustees who are named and their heirs for ever to the only and proper use and behoof of the trustees named and of their heirs for ever -

'To the intent and purpose aforesaid To be holden of the Chief Lord and Lords of the Fee and Fees thereof by the rents and services heretofore due and of right accustomed and yielding and paying therefore yearly for ever unto the said Francis Earl of Cumberland and Henry Lord Clifford their heirs and assigns the yearly rent of four pounds.'

Then it goes on:

'After the said recovery and recoveries fine and fines or any or either of them shall be had acknowledged and suffered executed entered and recorded as aforesaid to the use and behoof of' the 13 gentlemen first named 'and of their heirs for ever according to the intent and true meaning of the present indenture and to the intent that the said Earl and Lord Clifford their heirs and assigns shall and may for ever hereafter levy-receive perceive and take up the said yearly rent of four pounds.' Then it goes on: 'And it is further agreed by and between the said parties to these presents and the true intent and meaning hereof and of all the said parties is that the said capital messuage now called by the name of Clifford's Inn shall for ever hereafter retain and keep the same usual and ancient name of Clifford's Inn, and shall for ever hereafter be continued and employed as an Inn of Chancery for
(4) the good of the gentlemen of the Society and for the benefit of the Commonwealth as aforesaid and not otherwise, nor to any other use intent or purpose.'"

(b) The Honourable Society of the Inner Temple.
In Thomson v. Trustees of the Honourable Society of the Inner Templethe deputy judge said:
"The recitals and expression of intention of (King James I) contained in the letters patent are important and are as follows:

'Whereas our Realm of England, having been for so many ages exceedingly prosperous in the arts of peace and war, and having
(5) by the singular providence of God in his own time devolved upon us by hereditary right, is sensible that great part of its welfareis justly owing to the ancient and proper Laws of the Realmtried through a long series of ages, and particularly adapted to that populous and warlike nation, and approved by constant experience And whereas the Inns of the Inner and Middle Temple, London, being two out of those four Colleges the
(6) most famous of all Europe, as always abounding with persons devoted to the study of the aforesaid Laws and experiences therein, have been by the free bounty of our progenitors, Kings of England, for a long time dedicated to the use of the Students and
(7) Professors of the said Laws, to which as to the best seminaries of learning and education very many young men, eminent for rank of family and their endowments of mind and body, have daily resorted from all parts of this Realm, and from which many men in our own times, as well as in the times of our progenitors, have by reason of their very great merits been advanced to discharge the public and arduous functions as well of the state as of justice, in which they have exhibited great examples of prudence and integrity, to the no small honour of the said Profession, and adornment of this Realm, and good of the whole Commonwealth, as is to us so abundantly manifest; Know Ye Therefore, that we, being desirous of perpetuating, as far as in us lies, the welfare
(8) of this Realm of England, flourishing for so many ages by the administration of the said Laws, and compassing not so much the continuance of the ancient renown of the said Inns as an accession of new honour, and to leave upon record to all posterity a testimony
(9) of our good will and manificence to the Profession and to the Professors of the said Laws, have of our special Grace, certain knowledge, and mere motion, given and granted, and by these Presents for ourselves our heirs and successors do give and grant to our well-beloved and faithful Councillor Sir Julius Caesar ...'

The recitals demonstrate the nature and stature of the Inns at the time and the words 'being desirous of perpetuating, as far as in us lies, the welfare of this Realm of England' are an indication of the purpose of the gift. ... the property is described, and the words 'Halls, Houses, Edifices, Cloisters, Buildings, Chambers, Gardens, Courts,' further down with the words 'Church, Edifices and Buildings of the Church ... commonly called the Temple Church' ... present a picture which is familiar today. The habendum clause after the words appropriate to convey the fee simple proceeds as follows in the translation:

'Which said Inns, Messuages, Houses, Edifices, Chambers and other premises we will, and by these presents for ourselves, our heirs
(10) and successors, strictly command, shall serve for the Entertainment and Education of the students and Professors of the Laws aforesaid,residing in the same Inns for ever.'

The Latin words from 'strictly command' onwards are

'mandamus pro hospitacione & educacione studencium & professorum legum predictarum in eisdem hospitiis perpetuis t [sic] temporibus futuris commorantium deservive.'

It has been suggested by counsel on both sides that the word 'hospitacione' would be better translated as 'accommodation,' using that word in its widest sense, rather than 'entertainment,' and that the words 'professorum legum' would be better translated as 'those who profess the laws' rather than 'professor of the laws'; while the word 'commorantium' would be better translated as 'abiding' rather than 'residing.' It appears to me, though I make no pretence of Latin scholarship, that these suggestions are correct and I accept them."

BUCKLEY L.J.The question for determination in this case is whether the Incorporated Council of Law Reporting for England and Wales is a body established for exclusively charitable purposes. If it is, the council is entitled to be registered as a charity under the Charities Act 1960: otherwise, it is not so.
The council was incorporated in 1870 under the Companies Acts 1862 and 1867 as a company limited by guarantee, the word "limited" being omitted from the name by licence of the Board of Trade. The first object for which the council was incorporated was and still remains the preparation and publication in a commercial form at a moderate price and under gratuitous professional control of reports of judicial decisions of the superior and appellate courts in England. All of the other objects stated in the council's memorandum of association, which have already been read, should as a matter of construction, in my opinion, be regarded as subsidiary to the council's first object, which is, I think, not only a primary purpose but the primary purpose for which the council was established, which the other stated purposes subserve. It has therefore been proper that the argument has been concentrated upon the first object.
To ascertain for what purposes the council was established one must refer to its memorandum of association and to that alone. It is irrelevant to inquire what the motives of the founders were, or how they contemplated or intended that the council should operate, or how it has in fact operated: see Hunter v. Attorney-General [1899] A.C. 309; Bowman v. Secular Society Ltd. [1917] A.C. 406; Keren Kayemeth Le Jisroel Ltd. v. Inland Revenue Commissioners [1931] 2 K.B. 465; [1932] A.C. 650 and Tennant Plays Ltd. v. Inland Revenue Commissioners[1948] 1 All E.R. 506. But in order to determine whether an object, the scope of which has been ascertained by due processes of construction, is a charitable purpose it may be necessary to have regard to evidence to discover the consequences of pursuing that object. It would be immediately evident that a body established to promote the Christian religion was established for a charitable purpose, whereas in the case of a body established to propagate a particular doctrine it might well be necessary to consider evidence about the nature of the doctrine to decide whether its propagation would be a charitable activity.
In the present case no problem arises about the meaning of the council's objects. The question is whether their pursuit should be regarded as charitable. In this respect it is proper to have regard to evidence about the purposes which the pursuit of those objects will serve.
The Commissioners of Inland Revenue contend that the council's objects are not charitable, because, as they say, their purpose is to serve the interests of the legal profession, providing an essential tool of the practising lawyer. They admit that this may be beneficial to the community, but they say that it is not a purpose within the "spirit and intendment" of the preamble to the Statute of Elizabeth I.
The Commissioners of Inland Revenue point out that the initiative in setting up the unincorporated Council of Law Reporting, which was the precursor of the council, and in procuring the incorporation of the latter body was that of members of the legal profession; that the incorporated council is by the terms of its memorandum of association a body controlled by members of the legal profession; and that its publications constitute an essential part of the professional equipment of every practising lawyer in this country, not merely to enable him to take part in the trial of causes and the administration of justice but to enable him also to advise his clients in non-litigious matters and to provide those expert services, such as draftsmanship, which a practising lawyer offers. They contend that the advancement of the interests of members of the legal profession per se is not a charitable purpose: see General Medical Council v. Inland Revenue Commissioners (1928) 44 T.L.R. 439 and General Nursing Council for England and Wales v. St. Marylebone Borough Council [1959] A.C. 540.
On the other hand, if a body is established for a charitable purpose, it will be not the less a charity because the pursuit of that purpose will or may confer incidental benefits upon the members of a profession: see Royal College of Surgeons of England v. National Provincial Bank Ltd. [1952] A.C. 631 and Royal College of Nursing v. St. Marylebone Borough Council [1959] 1 W.L.R. 1077.
For the council it is argued that its objects are charitable upon the ground that they fall within the scope either of purposes for the advancement of education, using that term in a broad sense, or of the fourth head of Lord Macnaghten's celebrated enumeration of charitable purposes in Pemsel's case [1891] A.C. 531, 583 as being purposes beneficial to the community, which fall within the spirit and intendment of the Statute of Elizabeth I. It is emphasised that the members of the council, who are not more than 20 or so in number at any one time are precluded by the council's constitution from obtaining any profit or benefit as members from its activities. The council's publications can be bought by the general public and are, as the evidence shows, bought by a wide variety of users, including academic bodies, commercial and industrial bodies (including public utility undertakings), public authorities, government and public departments and offices, trade unions, and a wide variety of libraries, professional institutes and miscellaneous bodies, as well as a great many bodies and persons concerned with the administration and practice of the law, and all of these not merely in this country but also in many other countries within the Commonwealth and elsewhere. These circumstances, it is said, demonstrate that the council's publications constitute a general public purpose or, to use Sir Samuel Romilly's language in argument in Morice v. Bishop of Durham (1805) 10 Ves. 522, 531, an object of general public utility, and that this falls within the spirit of the preamble. In this connection Mr. Walton, for the council, has referred us to Duke on Charitable Uses, ed. 1676, p. 109, where it is said that the building of a sessions house for a city or a county has been held to be charitable: see also Attorney-General v. Heelis (1824) 2 Sim. & St. 67, 76, per Leach V.-C. We were also referred to Inland Revenue Commissioners v. City of Glasgow Police Athletic Association: [1953] A.C. 380, where Lord Normand, at p. 391, Lord Morton of Henryton, at p. 400, and Lord Reid, at p. 402, all expressed the view that the promotion of the efficiency of the polic