The Keepers and Governors of the Free Grammar School of John Lyon v His Majesty's Attorney-General

The court determined, on a further hearing supplementary to its earlier judgment ([2024] EWHC 2857 (Ch)), that the Royal Charter of 1572 continues to regulate the claimant charity for the purposes of the Charities Act 2011. The 1874 scheme and related statutory provisions transferred the Original Corporation’s undertaking, assets and attendant duties to the Claimant while preserving any trusts or liabilities, such that the Claimant remains bound by the charitable objects contained in the Charter.

As a consequence the court held that the mechanism in section 68 CA 2011 and the power under section 280C CA 2011 (both contingent on Order in Council approval) are available to change the Charter objects if a cy-près occasion arises or if the governing body resolves to seek amendment. The court also held that section 75ZA CA 2011 does not abolish the longstanding limitation on scheme-making jurisdiction in relation to matters specified by Acts of Parliament or Royal Charter (the "higher authority principle").

The court therefore concluded that alternative enquiries about exercising cy-près jurisdiction under other heads were unnecessary for present purposes and declined to determine questions under sections 7 or 11 of the Public Schools Act.

Background and parties. The claimant is the incorporated charity which runs Harrow School and The John Lyon School. The defendant is His Majesty’s Attorney-General, appearing in the public interest for charity law issues. The judgment is supplemental to an earlier first judgment handed down on 11 November 2024 ([2024] EWHC 2857 (Ch)), which rejected the claimant’s cy-près application on the ground that no cy-près occasion had arisen and held that the governors lacked power under the Public Schools Act to amend objects stated in a Royal Charter.

Nature of the further hearing and relief sought. The hearing on 18 March 2025 addressed consequential jurisdictional questions left open by the first judgment. The claimant sought clarification whether (i) the court could make a cy-près scheme in respect of the charter objects under section 68 Charities Act 2011 or whether the claimant could utilise the power in section 280C CA 2011 to amend the Royal Charter; (ii) whether the court’s scheme-making jurisdiction otherwise under section 75ZA or other provisions could be used; and (iii) if not, how the objects could be amended in future and whether ss.7 or 11 of the Public Schools Act could be used in respect of The John Lyon School.

Issues framed. The court formulated and addressed: (a) whether the Royal Charter remains a constitutional document regulating the Claimant for the purposes of section 68 and section 280C CA 2011; (b) whether section 75ZA CA 2011 has the effect of removing the higher authority principle as regards charter or statutory corporations; and (c) consequential questions about amendment routes (including sections 7 and 11 Public Schools Act) and whether the John Lyon School objects are statutory.

Reasoning and conclusions. The judge analysed authorities on the legal status of incorporated charities and the cy-près jurisdiction (including Liverpool and District Hospital for Diseases of the Heart v Attorney General [1981] Ch 193 and related authorities). He concluded the 1874 Scheme and the statutory scheme of 1873/1874 transferred the entire undertaking and assets of the Original Corporation to the Claimant while preserving any trusts or liabilities and the obligation to apply assets for the Charter objects. That led to the conclusion that the Royal Charter continues to regulate the Claimant in relation to its objects and that the procedures in section 68 and section 280C CA 2011 are available to effect change (in each case subject to Order in Council approval). The court further held that section 75ZA does not abolish the higher authority principle and was intended to resolve doubts about extending cy-près to corporate charities rather than to remove statutory or charter-based restraints on court or Commission intervention. Because of these conclusions, the court did not need to determine alternative bases for scheme-making and declined to reach the dispute about ss.7 and 11 of the Public Schools Act or whether the John Lyon School’s objects lie in the 1874 Statutes.

Practical outcome. The judgment resolves the legal uncertainty identified in the earlier decision by confirming that amendment of the Charter objects can be pursued by Order in Council following court resolution under section 68 or by exercise of section 280C by the charity trustees, should circumstances require it.

This further hearing determined that the Royal Charter of 1572 continues to regulate the claimant charity for the purposes of the Charities Act 2011. The 1874 Scheme and the 1873 Act transferred the Original Corporation’s undertaking, assets and attendant obligations to the Claimant while preserving existing trusts and liabilities; accordingly section 68 CA 2011 and section 280C CA 2011 provide available mechanisms (each subject to Order in Council approval) to amend the charity’s objects derived from the Charter. The court rejected the submission that section 75ZA CA 2011 has removed the higher authority principle and therefore concluded that other bases for scheme-making need not be explored. The court declined to determine whether ss.7 or 11 of the Public Schools Act could be used to amend objects for The John Lyon School.

This judgment is a further hearing supplementary to the court's earlier first-instance judgment in the same proceedings: The Keepers and Governors of the Free Grammar School of John Lyon v Attorney-General [2024] EWHC 2857 (Ch) (first judgment delivered 11 November 2024). Not an appeal.