§ 4.10 p.m.
§ Lord WELLS-PESTELL rose to move, That the draft Sex Discrimination Act 1975 (Amendment of Section 43) Order 1977, laid before the House on 3rd February, be approved. The noble Lord said: My Lords, I beg to move the draft Sex Discrimination Act 1975 (Amendment of Section 43) Order 1977. The proposed order will make a technical amendment to Section 43 of the Sex Discrimination Act 1975 to ensure that the Act affects charities in Scotland to the same extent as it affects charities in England and Wales. Section 43 excepts from the Act discrimination which is required by a term in a charitable instrument conferring benefits on persons of one sex only.
§ The definition of "charitable instrument" currently used in the Act is satisfactory in relation to English-based charities but it has emerged that the Scottish definition is more restrictive. Because of the inclusion of the word "established" in the penultimate line of Section 4, it would cover only an instrument made by or on behalf of a charity. It would not cover a Scottish instrument, for example in a will setting up a charity. Moreover, Section 43 does not define "charitable purposes" I in Scotland, and that might lead to other differences between Scottish and English applications of the legislation.
§ The order will overcome these difficulties by substituting for subsections (3) and (4) of Section 43 a subsection which defines a charitable instrument for Scotland and for England and Wales as one which was passed or made for charitable purposes. That is, it can be an instrument either setting up a charity or relating to a charity which was set up before the making or passing of the instrument. The new subsection also deals with the difficulty of defining "charitable purposes". It includes in the definition of a charitable instrument both the governing instrument of an endowment, as defined by Section 135(1) of the Education (Scotland) Act 1962, and any other instrument made for the purposes of such an endowment. Section 135(1) of the Act defines "endowment" by reference to the term "charitable purposes" and gives "charitable purposes" the same meaning as it has in 534 England and Wales. The effect is that the Scottish instruments relating to charities will be given exactly the same degree of exemption from the provisions of the Act as is given to English and Welsh instruments.
§ The same definition as is to be found in Section 43(3) and (4) of the Sex Discrimination Act was included in the charities exception, Section 34, of the Race Relations Act and it was introduced, as your Lordships know, last Session. When the defect in Section 43 of the Sex Discrimination Act came to light the Government, as your Lordships will remember, moved an Amendment to Section 34 of the Race Relations Act to achieve the same effect on that section as this order and, if approved, it will have that effect on Section 43 of the Sex Discrimination Act. My Lords, I beg to move.
§ On Question, Motion agreed to.