§ (1) Nothing in this Part of this Act shall—
- (a) be construed as affecting any future charitable instrument having as its main object the conferring of benefits on persons of a particular race, particular descent or particular ethnic or national origins; or
- (b) render unlawful an act which is done in order to comply with the provisions of any such instrument or of any existing charitable instrument of any description.
§ (2) In this section 'charitable instrument' means an enactment passed or instrument made for purposes which are exclusively charitable according to the law of England and Wales and 'future instrument' and 'existing instrument' mean respectively an instrument taking effect after, and an instrument taking effect before, the commencement of this Act.—[The Attorney-General.]
§ Brought up, and read the First time.
§ The Attorney-General (Sir Elwyn Jones)
I beg to move, That the Clause be read a Second time.
The purpose of this Clause, which is in substitution for Clause 9 of the Bill, is to extend the protection afforded by that Clause to certain charitable dispositions taking effect in future as well as in the past. The House will see that the existing Clause 9 provides that nothing in Part 1 of the Bill is to render unlawful an act done in order to comply with the provisions of any enactment passed or other instrument made for charitable purposes and taking effect before the passing of the Bill.
I recall to the House the reason for the Clause. There are many charitable trusts which restrict the dispositions which can be made under them to beneficiaries of a particular category, whether by reference to residence, nationality, country of origin, or in some other way as scholarships for the sons of Welsh clergymen, for instance, or almshouses for elderly Scotsmen. To comply with the terms of the trust, it is inevitable that the trustees should have to refuse 244 application from persons who do not fall within the specified category, and it could mean that they would be contravening the provisions of the Bill by turning away people on grounds that, because of race, they were ineligible under the terms of the trust instrument.
My right hon. Friend and I decided that it would be unreasonable to put a person in the position of having to choose between acting unlawfully and in a way contrary to the terms of the trust or other instrument which had been made and which had come into effect before the Bill was passed. But we took the view that, for the future, instruments setting up charitable trusts should be drawn in such a way, as not to require persons acting in pursuance of them to discriminate between one group and another.
For this reason, the protection afforded by the Clause was restricted to instruments made and taking effect before the passing of the Bill. But this, of course, left no protection for future charitable dispositions of a kind which most people would consider to be deserving of protection.
One example mentioned in Committee was the establishment by a rich Pakistani of a school for Pakistani children. Although in terms in favour of one group, its effect would be to discriminate against all other groups and the head teacher of such a school who turned away an English child would be liable to the charge that he was discriminating on ground of race. The matter was discussed in Committee on the basis of an Amendment put forward by the right hon. and learned Member for Huntingdonshire (Sir D. Renton), who sought to extend the protection to acts done in fulfilment of the objectives of any organisation established for charitable purposes whether the organisation was established before or after the coming into force of the Bill.
Since that date we have, as we undertook, given further thought to the matter. I agree that the Clause 9 is unsatisfactory as it stands. But, in my view, we should not go as far as the right hon. and learned Gentleman proposed. As I see it, his Amendment would have had the effect of protecting a charitable disposition drawn up for the benefit of all 245 persons save, say, those coloured or of a particular nationality, and I am sure that he would not find that position attractive and that he would seek to avoid it.
But ray right hon. Friend and I are certainly sympathetic to the view that, in seeking to outlaw discrimination in charitable activities for the future, we should not in doing so inhibit the setting up of charities which, although they may have a discriminatory element, nevertheless are for the benefit of sections of the community deserving of benefit and for purposes deserving of encouragement.
Accordingly, the new Clause, while reproducing the effect of the present Clause 9, goes further in that, with respect to charitable instruments taking effect after the commencement of the Act, it protects such instruments and acts done in order to comply with them if they are instruments having as their main objective the conferring of benefits on persons of a particular race, particular descent or of particular ethnic or national origin.
This will, I hope, cover cases of the kind referred to in Committee—for instance, schools for the education of Frenchmen, homes for elderly Jews, trusts in favour of future immigrants from Pakistan. But it will not protect instruments intended to exclude particular sections of the community on the grounds of race, colour and so on. I hope that the House, and, in particular, the right hon. and learned Gentleman, will feel that the Government have gone the whole way to meet the substance of the criticisms of the Clause as it stands and that new Clause 2 will be accepted in substitution.
§ Sir David Renton (Huntingdonshire)
I express my gratitude to the right hon. and learned Gentleman the Attorney-General not only for the clear explanation he has given, but for the great amount of thought and consideration he has given to the matter in reaching the conclusion which is contained in new Clause 2. What it comes to is that, in future charitable instruments;, it would be legitimate to discriminate in favour but not legitimate to discriminate against. That is a wise and satisfactory solution, and I am grateful for it.
§ Sir B. Janner
I, too, congratulate my right hon. and learned Friend the Attorney-General on the manner in which he has been able to devise a very useful Clause to meet what appeared to many of us as a serious objection to the original Clause. A large number of organisations will now be able to continue their activities—or, rather, to create new activities—in a manner similar to the methods used before.
In addition, if new Clause 2 had not been introduced there would have been a disincentive to many people who are charitably disposed. They might have been dissuaded from introducing charitable provisions for the benefit of a large number of people. We are grateful to my right hon. and learned Friend and thank him very much.
§ Question put and agreed to.
§ Clause read a Second time, and added to the Bill.