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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Southwood & Anor v Attorney General [2000] EWCA Civ 204 (28 June 2000) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/204.html Cite as: [2000] EWCA Civ 204

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Case No: CHANF 98/1405/CMS3

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
(MR JUSTICE CARNWATH)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 28 June 2000

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5. The question, which the court must address in each case, is whether the objects to be pursued, although expressed to be of a charitable nature within the spirit and intendment of the preamble to the Statute of Elizabeth (43 Eliz. 1 cp 4), should be recognised as being for the public benefit in the sense in which that concept has come to be understood in the light of the many decisions in this area of the law. It is not enough that the objects should be expressed to be the advancement of education; it is necessary that the advancement of education in the manner intended should promote public benefit. As it was put by Mr Justice Slade, in McGovern v Attorney General [1982] Ch 321, at page 333G-334B:
"Save in the case of gifts to classes of poor persons, a trust must always be shown to promote a public benefit of a nature recognised by the courts as being such if it is to qualify as being charitable. The question whether a purpose will or may operate for the public benefit is to be answered by the court forming an opinion on the evidence before it: see National Ant-Vivisection Society v Inland Revenue Commissioners [1948] 31, 44, per Lord Wright. No doubt in some cases a purpose may be so manifestly beneficial to the public that it would be absurd to call evidence on this point. In many other instances, however, the element of public benefit may be much more debatable. Indeed, in some cases the court will regard this element as incapable of proof one way or the other and thus will inevitably decline to recognise the trust as being of a charitable nature."
6. In the present case, therefore, the relevant question is whether the "advancement of the education of the public in the subject of militarism and disarmament and related fields" promotes public benefit. If it does, the trust can be recognised as charitable. If it does not - or if, after investigation of the evidence, the court is satisfied that there is no means of determining whether it does or not - the trust cannot be recognised as charitable.
The background material
7. The declaration of trust, like any other written instrument, must be construed with a proper regard to the circumstances in which it came to be executed. This principle is of no less relevance where (as in the present case) the instrument is the unilateral act of one party (the first trustees) and does not reflect a consensual bargain between parties with different interests. In order to ascertain the nature and scope of the objects which the first trustees intended to promote under the banner of "education . . . in the subject of militarism and disarmament and related fields" it is necessary to look at the material emanating from them in advance of the execution of the declaration of trust in June 1994.
8. The objects which became incorporated as clause 3.1 of the declaration of trust as executed first appeared (so far as may be ascertained from the material before the judge) in a draft declaration of trust prepared by Messrs Farrer & Co, solicitors, and sent to the Charity Commission in December 1992. With their letter and the draft document Farrers sent, also, what was described as a "background paper" prepared in October 1992 by Dr Schofield and Dr Southwood. It is, I think, helpful to an understanding of the project which they had in mind to set out a substantial part of that paper:

The specific aims of the Project on Demilitarisation are:
1. To fundamentally question the new forms of militarism arising in the West in relation to:
- its recent record;
- current official policies;
- the likely consequences for the future.
2. To propose alternative policies to achieve disarmament and a
conversion of resources from military to civilian purposes.

METHOD
The instruments for achieving the aims would be three series of closely inter-related briefings, supplemented by public seminars. An outline programme for the first year of operation has been devised and we have consulted various existing bodies about this and the basic concept itself. The ideas behind the briefings, and the outlines themselves, have received strong support from individuals in Dfax (specialists in electronic retrieval, analysis and dissemination of defence and arms control information) and the British American Security Information Council (BASIC). PRODEM plans to collaborate with these, and other, bodies wherever possible.
Audiences
Since our aim is to advance UK public education our audiences can be categorised as follows:
Primary: All those organisations and individuals with an interest in national economic priorities and, in particular, the balance between military and civilian expenditures e.g. industrial associations, health service professional bodies and trade unions, certain research institutes and educational organisations, scientific and technical associations and medical research groups, environmental watch-dogs, Third World aid organisations etc.
In addition there are peace research and peace organisations, labour groups and politicians with an interest in this area. Some of these will help provide in-roads into the new audiences defined above.
Secondary: Whilst it will take time to build up press interest in our briefings, any growth in public awareness of how excessive certain military commitments have become would begin to draw media attention (especially locally). Thus journalists form a key secondary audience. Dfax, BASIC and the Department of Peace Studies have established good contacts with this audience and we would network with them on this.
Decision-makers would be another significant audience which we would hope to interest gradually. Our past experience suggests that some senior industrialists and civil servants will want to keep abreast of thinking amongst peace researchers, and this should grow if a wider public debate is generated. However we would not duplicate the important work of existing bodies, such as the Oxford Research Group and the Saferworld Foundation.
Tertiary: Our planned seminars are intended to attract members of the public so as to bring a broader cross-section of the community, especially in marginalised inner city areas, into the debate.
Nature of Briefings
Since there is no point in producing the briefings unless they are useful, they will be geared to the perceived needs of our selected audiences. We believe that the opportunity cost argument is one which needs to be linked to the dangers of a continuing arms race if it is to make a significant impact on our primary audiences. We believe that many are not in possession of reliable facts and figures to prove that extra resources are tied up in maintaining excessive military forces.
Consequently the briefings will be concise, readable and in a form useful for our audience's educational, lobbying or campaigning purposes. The main text will be limited to 8 pages but appendices packed with accurate information and data from authoritative sources will yield a substantial overall package which can be attractively priced. We would aim to time the publication of each briefing to achieve maximum impact.
Outline Programme
The proposed title for the briefing series is The New Militarism. Each series has a (tentative) sub-title and its own theme although there will be a strong inter-relationship between them:
Series A: Military Security?
Overall Theme: The West has been losing the peace which it could win.
Series B: Military Expenditure and the Arms Race
Overall Theme: UK military spending is being kept artificially high.
Series C: Diversification and Arms Conversion
Overall Theme: There is no supportive framework within the UK . . . so far.
The programme for the first year is briefly summarised below.
The timings are notional at present but reflect links within and between briefings.
Sep 1992: No.1 Opening of Briefing Series
The Triumph of Unilateralism
Theme: The unilateralist initiatives of former President Gorbachev broke the log-jam in East-West relations and were a decisive factor in ending the Cold War. But Western militarism is losing the peace.
Jan 1993: Series A/1 NATO's Military Supremacy
Theme: Objectively, NATO has military superiority over Russia or any other potential adversary. This is incompatible with its own former policy positions and its self-proclaimed status as a defensive alliance.

Series B/1 Militarism vs Disarmament
Theme: The potential for radical cuts in military expenditure is threatened by continuing and unnecessary arms race.
Mar 1993: Series A/2 Western Generals - A driving Force for NATO Supremacy?

Series B/2 British Militarism Sustains the Arms Trade
June 1993: Series A/3 Military Adventurism {Past foreign policy errors}
Series C/1 Western Generosity: Helping Military Industries to Disarm in the East . . . But not in the West
Sep 1993: Series A [Future briefings on key trouble spots.]
Series B/C [Wasted Military Resources/Conversion Options]"
9. There was some slippage in the programme. The first briefing paper, "The Triumph of Unilateralism" (scheduled for September 1992), is dated March 1993. It was sent by Farrers to the Charity Commission under cover of a letter dated 29 November 1993. Further briefing papers, B/1 "Militarism or Disarmament" and A/1 "NATO's Military Supremacy", are dated respectively August and September 1993. Those papers were sent to the Charity Commission in February 1994. Briefing paper C/1 "Western Hypocrisy on Arms Conversion" (a change from the provisional title suggested in the original background paper - but on the anticipated theme) is dated March 1994; and a fifth paper, A/2 "Western Generals", is dated April 1994. Briefing paper A/3 "Military Adventurism" is dated October 1995 - that is to say, after the execution of the declaration of trust in June 1994. It is to the first five papers - "The Triumph of Unilateralism", "Militarism or Disarmament", "NATO's Military Supremacy", "Western Hypocrisy on Arms Conversion" and "Western Generals" that the court must look in order to understand what Dr Schofield and Dr Southwood had in mind when they established a trust the primary object of which was expressed to be "The advancement of the education of the public in the subject of militarism and disarmament and related fields".
10. The briefing papers are substantial documents. It would be inappropriate - and it is unnecessary - to attempt to reproduce them in this judgement. It is, I think, sufficient to draw attention to some of the passages to which we were taken in argument.
11. "The Triumph of Unilateralism" (No 1: March 1993) begins with a statement of purpose:
"We are on the road to war. After the Cold War and the Gulf War the next war is just waiting to happen . . . wherever it may be. The facts of recent history lead inexorably to this conclusion. Yet only three short years ago, when the Berlin Wall came down, the prospects for peace had never looked brighter. What went wrong? And why? And how can we be on the road to war when we could and should be on the road to peace?"
The general editors Dr Schofield and Dr Southwood, identify what they describe as "three basic assumptions of Western foreign policy": (i) that "bargaining from strength" and multilateralism were the way to achieve arms reductions; (ii) that it was right not to provide major Western aid to support economic restructuring in the Soviet Union (as it then was); and (iii) that collective security through NATO represented the best way to guarantee national security. Each of those assumptions is analysed and rejected. The conclusion is expressed in these terms:
"As we have seen the three assumptions on which the Western approach to the reform process in the former Soviet Union was based were false. First, the unilateralist initiatives of the Gorbachev administration not `bargaining from strength' ended the Cold War. Secondly, the West should either have provided a major programme of economic aid for the former Soviet Union or made clear to the radicals from the beginning that their plans for a market economy, which had always been predicated on such support, were unrealistic. The failure to provide sufficient support first for Gorbachev, and then Yeltsin, has left the West without moral foundation. And now global security is threatened by its adherence to the doctrine of collective security and rejection of common security.
We are forced to the conclusion that unless the West alters course, and does so soon, the seeds of war sown in the 1980s and early 1990s will bear a bitter harvest as NATO, and other Western political and military institutions, embark on a strategy of enforcing the `peace' by the application of overwhelming military force. This strategy, in its futility and waste, may yet exceed that of the Cold War from which it emerged. There is an alternative, but it will not come of itself. So it is to alert Western, and especially British, publics to the dangers and opportunities of our present situation that we dedicate our series of briefings."
12. The main text of "Militarism or Disarmament?" (B1: August 1993) was written by Dr Schofield. The statement of purpose is expressed in these terms:
"From Hiroshima to Baghdad, from nuclear bombs to cruise missiles, the West's obsession with the technology of war continues. Are we trapped in a technological arms race or can we build a new international order based on common security and the peaceful use of science?"
The answer is suggested in section 4, `Final Conclusion':
"Alternatively the UK can play a leading role, with the other main arms producing countries, of reigning in the arms race and focusing on a new international security regime that puts, as its highest priority, the resolution of conflict through assistance in the areas of economic and social development. Controlling the technological arms race raises major questions on the structure of international institutions. The examples of existing disarmament agreements and verification procedures provide the essential building blocks to a more comprehensive international disarmament system.
If implemented it would give the UK the opportunity to embark on the sort of cuts in military commitments and spending that would release a substantial peace dividend. For example a run down of armed forces and a reduction in defence spending of 50 per cent is entirely feasible, including a similar reduction in defence R&D.
At present one can only conclude that the West has manipulated the disarmament process to ensure its technological advantage and is prepared to accept a new arms race when it should have played a leading role in generating international support for the next phase of disarmament. The UK bears a heavy responsibility for this situation, both through its own commitments like nuclear weapons modernisation and through its leading role in Nato's new strategy."
13. The third briefing paper, "Nato's Military Supremacy - What is it for?" (A/1: September 1993) was written and edited by Dr Southwood. Its statement of purpose is in these terms:
"Historically, large standing armies with nothing to do have been a threat to peace. NATO has an indisputable and growing military superiority over Russia, or any other potential enemy, which is incompatible with its self-proclaimed status as a defensive alliance. How might this capability for offensive action be used against external foes? And what would the consequences be of using or not using this military might in Bosnian-type civil wars?"
The answers are suggested on pages 18 and 19 of the paper:
"The UN itself stands tantalisingly on the brink between its traditional peacekeeping role and a possible transition to a peace enforcement role. Bosnia has revealed all the difficulties and dangers of the latter and the impotence of the former. NATO wants to act under UN auspices whilst retaining its independence to decide when to do so. Our analysis suggests, though, that there is no justification for retaining the huge standing armies of the Alliance for the purposes of military intervention unless the UN is to be turned into an instrument for imposing a militarised `peace'.
There is, therefore, a great danger of the UN being drawn into wider conflicts by the major NATO states that cannot be resolved by this huge over-concentration on military security - to the neglect of their economic, social and environmental aspects. This may not be rectified until Western political leaders and their generals have committed another major foreign policy blunder involving serious loss of Western lives and resources. But if external military intervention does not occur then it will become progressively more difficult to justify NATO's planned force levels and military expenditures.
Progress on conflict resolution will be largely dependent on Western governments devising new strategies and doctrines based on a broader approach to security. At present this seems most unlikely to happen because of their refusal to acknowledge that common security, not military security through NATO, is the best way to guarantee national security."
[emphasis as in text]
14. "Western Hypocrisy on Arms Conversion" (C1: March 1994) was written by Dr Schofield. Its thrust is summarised in these terms:
"Unlike the former Soviet Union, there is no international security dimension to the Western approach. Far from wanting demilitarisation as a continued and irreversible process, governments in the West have sustained defence expenditure at historically high levels and intensified support for arms exports. As a result, we have seen the maintenance of a permanent peace-time military economy. It is difficult not to come to the conclusion that the Western powers approved of Soviet conversion, and provided some limited support through technical and economic aid, as a way of dismantling its own industries while maintaining their own intact.
Conversion in the West needs a new dimension, linking further progress on disarmament to a wide-ranging conversion policy which can bring both clear economic benefits while contributing to improved international relations. Demilitarising the economy is as important as disarming the military."
[emphasis as in text]
15. "Western Generals" (A/2: April 1994) is another paper of which Dr Southwood is the principal author. Its statement of purpose is set out in these terms:
"In any military conflict the general's task is to win the war. So the way that British and American commanders prepare for and fight wars is crucial. It heavily influences the potential for any move to broaden the concept of security. What are the prospects for a change in the role of generals? And what might be the consequences if little or no change is possible?"
The paper concludes that the current military security role of Western generals is incompatible with a move towards common security; "Yet even if it is the generals who sustain this role civilian leaders, backed by their publics, initiate it."
16. The passages in the briefing papers which I have set out provide only a flavour - but, I think, a representative flavour - of their contents. To my mind it is impossible to read the briefing papers - as I have done - without reaching the conclusion that what the first trustees (Dr Schofield and Dr Southwood) had in mind when they executed the declaration of trust in June 1994 was that the "education" of the public should be advanced by the dissemination of their own views in relation to the evils of militarism, the need for disarmament, and the curtailment of the role of NATO and of the support of the United Kingdom for collective military security through an alliance of that nature. That is not to denigrate those views; nor to suggest that they are not sincerely held and defensible. But it is to recognise - as seems to me it must be recognised when the papers are read (as they are intended to be read) as a sequential whole - that the purpose of the authors was to advocate alternative policies to achieve disarmament and a conversion of resources from military to civilian purposes. Their advocacy of those policies was to be directed towards the audiences identified in the background paper prepared in October 1992 - pressure groups, politicians, journalists and decision makers. It is, I think, beyond argument that the aim of the PRODEM initiative was to bring about a change in the policy of the United Kingdom government - and, perhaps, other Western governments - in relation to disarmament and the role of NATO. In my view Miss Taylor, when replying on behalf of the Charity Commission to one of Farrers's first letters in December 1992, was correct to state:
"Although the Project claims to be charitable under the educational head, in fact what is intended . . . is the promotion of disarmament and the conversion of resources from military to civilian purposes, which is clearly a political purpose. Indeed, the whole thrust of the intended activities is political, for example Audiences (interested bodies/persons, the media and decision-makers), Nature of Briefing (useful for audiences' educational, lobbying or campaigning purposes), Outline Programme (briefing sub-titles reflecting political stance)."
At the time when she wrote, Miss Taylor had seen only the background paper of October 1992; but the outline of the project contained in that paper was sustained and carried into effect by the briefing papers which followed.
Political objects and the need for public benefit
17. I have already referred to the need to show that a trust promotes public benefit if it is to be recognised as charitable - a need conveniently identified by Mr Justice Slade in the passage of his judgment in McGovern v Attorney General [1982] Ch 321, at page 333G-334B, which I have set out. Cases in which the court will regard the element of public benefit as incapable of proof one way or the other - and so will be obliged to decline to recognise the object as being of a charitable nature - include trusts for what are, loosely, described as "political objects". Mr Justice Slade, in the McGovern case, referred to the well known passage in the speech of Lord Parker of Waddington in Bowman v Secular Society Ltd [1917] AC 406, at page 442:
". . . but a trust for the attainment of political objects has always been held to be invalid, not because it is illegal, for everyone is at liberty to advocate or promote by any lawful means a change in the law, but because the court has no means of judging whether a proposed change in the law will or will not be for the public benefit, and therefore cannot say that a gift to secure the change is a charitable gift."
18. Although, as Mr Justice Slade pointed out in the McGovern case, [1982] Ch 321, 334H, Lord Parker may be taken to have had in mind, when referring to "political objects", objects which involved changes to the existing laws of England, the concept is much broader than that. Mr Justice Slade went on to consider other circumstances to which the same principle would apply. At page 339C-D he said this:
"If a principal purpose of a trust is to procure a reversal of government policy or of particular administrative decisions of government authorities, does it constitute a trust for a political purposes within the spirit of Lord Parker's pronouncement? In my judgment it does. If a trust of this nature is to be executed in England, the court will ordinarily have no sufficient means of determining whether the desired reversal would be beneficial to the public, and in any event could not properly encroach on the functions of the executive, acting intra vires, by holding that it should be acting in some other manner. If it is a trust which is to be executed abroad, the court will not have sufficient means of satisfactorily judging, as a matter of evidence, whether the proposed reversal would be beneficial to the community in the relevant sense, after all its consequences, local and international, had been taken into account."
19. Mr Justice Slade summarised his conclusions in a passage, at [1982] Ch 321, 340B-E, on which Mr Justice Carnwath placed reliance in the present case:
"(1) Even if it otherwise appears to fall within the spirit and intendment of the preamble to the Statute of Elizabeth, a trust for political purposes falling within the spirit of Lord Parker's pronouncement in Bowman's case can never be regarded as being for the public benefit in the manner which the law regards as charitable. (2) Trusts for political purposes falling within the spirit of this pronouncement include, inter alia, trusts of which a direct and principal purpose is either (i) to further the interests of a particular political party; or (ii) to procure changes in the laws of this country; or (iii) to procure changes in the laws of a foreign country; or (iv) to procure a reversal of government policy or of particular decisions of governmental authorities in this country; or (v) to procure a reversal of government policy or of particular governmental authorities in a foreign country."
He made it clear that that categorisation was not intended to be an exhaustive one.
20. In the McGovern case Mr Justice Slade reached the conclusion that the objects of Amnesty International were "political objects" within the spirit of Lord Parker's pronouncement in the Bowman case, and so did not qualify for recognition as charitable. He revisited this area of the law as a member of this Court in In re Koeppler's Will Trusts [1986] Ch 423. The gift, in that case, was for purposes which could be described as "the Wilton Park project". Mr Justice Peter Gibson, from whose decision the Attorney General had appealed to this Court, had described that project in a passage which Lord Justice Slade set out at [1986] Ch 423, 436G-H:
"Let me consider first whether the Wilton Park process can properly be described as educational. [Counsel for the Attorney General] submitted, and I accept, that the following salient points emerged from the evidence: (i) the conferences sought to improve the minds of the participants, not necessarily by adding to their factual knowledge but by expanding their wisdom and capacity to understand; (ii) the subjects discussed at conferences were recognised academic subjects in higher education; (iii) the conferences operated by a process of discussion designed to elicit an exchange of views in a manner familiar in places of higher education; (iv) the conferences were designed to capitalise on the expertise of participants who were there both to learn and to instruct."
This Court, reversing Mr Justice Peter Gibson, held the gift to be charitable. It is instructive to note the basis upon which Lord Justice Slade (with whose judgment Lord Justice Robert Goff and Lord Justice O'Connor agreed) distinguished his earlier decision in the McGovern case. At [1986] Ch 423, 437F-438B he said this:
"We were referred to a decision of my own in McGovern v Attorney-General [1982] Ch 321, where I held, inter alia, that though certain trusts, declared in a trust deed, for research into the observance of human rights and the dissemination of the results of such research would have been charitable if they had stood alone, they were mere adjuncts to political purposes declared by earlier provisions of the deed.
However, in the present case, as I have already mentioned, the activities of Wilton Park are not of a party political nature. Nor, so far as the evidence shows, are they designed to procure changes in the laws or governmental policy of this or any other country: even when they touch on political matters, they constitute, so far as I can see, no more than genuine attempts in an objective manner to ascertain and disseminate the truth. In these circumstances I think that no objections to the trust arise on a political score, similar to those which arose in the McGovern case. The trust is, in my opinion, entitled to what is sometimes called "benignant construction", in the sense that the court is entitled to presume that the trustees will act only in a lawful and proper manner appropriate to the trustees of a charity and not, for example, by the propagation of tendentious political opinions, any more than those running the Wilton Park project so acted in the 33 years preceding the testator's death: compare McGovern v Attorney-General, at p.353E-F."
21. Cases on the other side include In re Hopkinson [1949]1 All ER 346 and In re Bushnell [1975] 1 WLR 1596. In In re Hopkinson, the relevant gift was "for the advancement of adult education . . . with particular reference to the following purpose . . . that is to say, the education of men and women of all classes (on the lines of the Labour Party's memorandum headed `A Note on Education in the Labour Party . . . ) to a higher conception of social, political and economic ideas and values and of the personal obligations of duty and service which are necessary for the realisation of an improved and enlightened social civilisation". After referring to the observation of Mr Justice Rowlatt in Inland Revenue Commissioners v Temperance Council of the Christian Churches of England and Wales (1926) 136 Law Times 27, at page 28, that:
"Any purpose of influencing legislation is a political purpose in this connection. Under these circumstances, this is mainly a trust to secure a certain line of legislation, and if that is so, I do not understand it to be disputed that that would not be a charitable trust. I think the authorities are clear upon it and I am not going to say anything more about it. . . . ;"
Mr Justice Vaisey said this, at page 352:
"Applying that to this case, I should have thought that the testator's object here was plainly to secure, not necessarily a certain line of legislation, but a certain line - and a perfectly proper and permissible line from the point of view of those who advocate it - of political administration and policy."
22. In In re Bushnell [1975] 1 WLR 1596 the gift was for "the advancement and propagation of the teaching of socialised medicine". Mr Justice Goulding observed, at page 1605 E-F:
"I am quite unable to avoid the conclusion that the main or dominant or essential object is a political one. The testator never for a moment, as I read his language, desired to educate the public so that they could choose for themselves, starting with neutral information, to support or oppose what he called "socialised medicine". I think he was trying to promote his own theory of education, if you will by propaganda, but I do not attach any importance to that word."
The judgement below
23. The judge referred to other cases which predated McGovern and Koeppler - in particular, to In re Harwood [1936] Ch 285 (in which it appears to have been accepted without argument that a gift to a Peace Society was charitable), to In re Stakosch [1949] Ch 529 (a trust to appease racial feeling between the Dutch and English speaking sections of the community in South Africa; held not charitable) and Buxton v Public Trustee (1962) 41 TC 235 (a trust to promote and aid the improvement of international relations and intercourse; held not charitable). He referred, also, to the decision of the Supreme Court of Massachusetts in Parkhurst v Burrill (1917) 117 NE 39, 228 Mass. 196, in which a gift to the World Peace Foundation was held to be charitable. He concluded, at paragraph 30 of his judgment:
"To understand what is meant by that expression [militarism and disarmament] one has to turn to the background material. From that it is clear that the purpose is not limited to educating the public in the peaceful means of dispute resolution, or even to creating "a public sentiment" in favour of peace. The term "militarism" is intended to define the current policies of the Western governments, and the purpose of Prodem is to challenge those policies ("to fundamentally question the new forms of militarism arising in the West"). That is the clear and dominant message, which in my view can only be described as political. Dr Southwood has criticised the Commissioners' choice of extracts from the briefings as "selective", but the overall theme is unmistakable. The limitation (in para. 3.1 of the Declaration of Trust) to "charitable means" does not in itself ensure that the purposes are exclusively charitable (see Re Koeppler Trusts [1984] Ch 243, 262G per Peter Gibson J)."
24. On the basis of his finding that the purpose of Prodem was to challenge the current policies of Western governments the judge was bound to hold, as he did, that the Charity Commissioners had been right to refuse to recognise the trusts declared by the 1994 deed as charitable. That was not, as the judge made clear, because those policies were unchallengeable - or because to challenge them was in any way unlawful or improper - but because the court cannot determine (and should not attempt to determine) whether policies adopted by the government of the United Kingdom and other Western governments are or are not for the public benefit.
The appellants' case on appeal
25. Dr Southwood does not quarrel with the judge's identification of the relevant principles of law. In his skeleton argument and at the hearing of the appeal, he accepted that the judge had fully and correctly taken into account all the relevant authorities. He contends, however, that the judge erred in applying the principles which he had identified to the facts of this case. As he puts it, at paragraph 1.3 of his skeleton argument: "The sole remaining question is whether the dominant purpose of PRODEM is educational rather than political"
26. Dr Southwood submits that the desirability of peace as a general objective is not controversial. To put the point another way, the promotion of peace rather than war is so obviously in the public benefit that the court is faced with no difficulty. So "peace studies" has at least as strong a claim to be regarded as charitable in nature as does the more familiar academic discipline of "war studies". He relies strongly on the decision of the Supreme Court of Massachusetts in Parkhurst v Burrill (1917) 117 NE 39, 228 Mass 196.
27. But the judge accepted that a purpose might be educational, even though it was based on the premise that the public should be educated as to the "evil effects" of war; and so adopted what the Commissioners described as an "irenical perspective". The judge said this, at paragraph 26 of his judgment:
"Although [Parkhurst v Burrill] is not direct authority for the purposes of English law, I do not see any reason to take a different view. I see nothing controversial in the proposition that a purpose may be educational even though it starts from the premise that peace is preferable to war, and puts consequent emphasis on peaceful, rather than military techniques for resolving international disputes; and even though one purpose of the education is to "create a public sentiment" in favour of peace. The important distinction from the "political" cases [In re Hopkinson and in re Bushnell] mentioned above, is that the merits or otherwise of the Labour Party's views on education, or (in the early 1940s) of a state health service, were matters of political controversy. The desirability of peace as a general objective is not."
28. Dr Southwood will, I trust, forgive me if I do not deal expressly with each of the many points which he develops in a closely reasoned argument. The reason why I do not do so is that I am unable to find in that argument any real appreciation of the reasoning which led the judge to reach the decision which he did. In those circumstances it is not surprising that the argument does not address the point on which Dr Southwood needs to satisfy this Court if this appeal is to have any chance of success.
29. The point, as it seems to me, is this. There is no objection - on public benefit grounds - to an educational programme which begins from the premise that peace is generally preferable to war. For my part, I would find it difficult to believe that any court would refuse to accept, as a general proposition, that it promotes public benefit for the public to be educated to an acceptance of that premise. That does not lead to the conclusion that the promotion of pacifism is necessarily charitable. The premise that peace is generally preferable to war is not to be equated with the premise that peace at any price is always preferable to any war. The latter plainly is controversial. But that is not this case. I would have no difficulty in accepting the proposition that it promotes public benefit for the public to be educated in the differing means of securing a state of peace and avoiding a state of war. The difficulty comes at the next stage. There are differing views as to how best to secure peace and avoid war. To give two obvious examples: on the one hand it can be contended that war is best avoided by "bargaining through strength"; on the other hand it can be argued, with equal passion, that peace is best secured by disarmament - if necessary, by unilateral disarmament. The court is in no position to determine that promotion of the one view rather than the other is for the public benefit. Not only does the court have no material on which to make that choice; to attempt to do so would be to usurp the role of government. So the court cannot recognise as charitable a trust to educate the public to an acceptance that peace is best secured by "demilitarisation" in the sense in which that concept is used in the Prodem background paper and briefing documents. Nor, conversely, could the court recognise as charitable a trust to educate the public to an acceptance that war is best avoided by collective security through the membership of a military alliance - say, NATO.
Conclusion
30. The reason why Dr Southwood's contentions failed below - and the reason why, to my mind, they must fail in this Court - is not because he starts from an irenical perspective that peace is preferable to war. It is because it is clear from the background paper prepared in October 1992, and from the briefing papers to which I have referred, that Prodem's object is not to educate the public in the differing means of securing a state of peace and avoiding a state of war. Prodem's object is to educate the public to an acceptance that peace is best secured by "demilitarisation". I have no reason to doubt Dr Southwood's sincerity when he protests to the contrary; but the evidence is firmly against him. It is because the court cannot determine whether or not it promotes the public benefit for the public to be educated to an acceptance that peace is best secured by "demilitarisation" that Prodem's object cannot be recognised as charitable.
31. For that reason I would dismiss this appeal.
May LJ:
32. I agree that this appeal should be dismissed for the reasons given by Chadwick LJ.
Kennedy LJ:
33. I also agree.
Order: the appeal is dismissed with costs. Dr. Southwood is given liberty to apply re: costs.
(Order does not form part of the approved judgment.)