The first Amendment to be called is that standing in the name of the hon. Member for Norwich, South (Mr. Rippon), in page 1, line 9. I think it might he for the convenience of the Committee if with it were discussed the Amendment in page 1, line 8, standing in the name of the hon. and learned Member for Bolton, East (Mr. Philip Bell), the Amendments in page 1, line 16, standing in the name of the hon. and learned Member for Bolton, East, and the Amendment in page 2, line 11, which stands in the name of the hon. Member for Norwich, South.
I beg to move, in page 1, line 9, at the end to insert:
and are not provided for profit".
Before explaining the purpose of the Amendment, I should like to make one general observation which I hope may be helpful. It has been a matter of considerable concern to a number of hon. Members on this side, a number of people in legal circles outside, and a number of organisations, such as the Association of Municipal Corporations, that all the stages of this Bill are to be taken this afternoon only a few days after the Second Reading. I hope that before we go into too great detail it may be possible to have at an early stage of our deliberations an assurance from the Government that they will defer the Report stage and Third Reading of the Bill until later, so that, if it is not possible to accept the precise terms of some
of the Amendments now on the Order Paper, they can at least be carefully considered before Report stage, together with any others which may be brought forward; also that bodies like the Association of Municipal Corporations, who have made representations on this subject since Second Reading, shall have an opportunity to deal with that aspect of the Bill which appears to impinge upon the activities of the Pritchard Committee which is now considering the implications of Section 8 of the Rating and Valuation (Miscellaneous Provisions) Act, 1955.
The first Amendment, which is designed to add the words "and are not provided for profit" to Clause 1 (1) of the Bill, has to be considered in the light of the provisions of Section 8 of the Rating and Valuation (Miscellaneous Provisions) Act, 1955. Section 8 of that Act gives a measure of relief from rates to organisations which are charitable or otherwise concerned with the advancement of religion, education or social welfare provided that they are not established or conducted for profit.
There is no reference in the Bill, either in respect of Clause 1 (1) or Clause 1 (3), to profit. I raised on Second Reading the hypothetical case of the provision of a coffee bar with rock 'n' roll facilities for young people which might be established or conducted for profit. The cases which have come forward under Section 8 show that a distinction can be made between functions conducted for private profit and those conducted for the profit of the organisation in order that proceeds could be ploughed back to advance other objects of the organisation. It would be very helpful if the Joint Under-Secretary of State could explain why it is that there is no reference to profit anywhere in the Bill, although it is expressly provided for in Section 8 of the 1955 Act.
My hon. Friend the Member for Norwich, South (Mr. Rippon) has asked me to give some indication about the later stages of the Bill. The question of when the Report and Committee stages are taken will depend upon the progress we make today with the Committee stage and upon the points raised and whether we find it necessary to consider any further point. Obviously, if it should be necessary to do that we would not ask the House to take the Report stage today.
I ask my hon. Friend to bear in mind that this Bill was first introduced in the House of Lords. It passed through all its stages in the Lords, and the opportunity was taken for discussion there, especially upon one difficult point. The proceedings in another place naturally attracted a good deal of publicity and received the attention especially, I would have thought, of those people outside Parliament who are interested in the subject matter of the Bill.
I am sure that my hon. Friend and, indeed, the Committee will agree that this is a Bill for which there is a great public demand. It is a Bill which removes doubt, and the sooner the doubts are removed by the Bill's being given the Royal Assent the happier so many people will be. I do not say that that is any reason for rushing the Bill, but it means that any help the Committee feels it can give the Government in expediting its progress will be greatly appreciated.
With great respect to my hon. Friend the Member for Norwich, South, I do not think it is necessary to have his Amendment. My hon. Friend asked me to say why it was that the question of non-profit making activities was specifically referred to in the 1955 Act and why it should not be necessary in this Bill. It would clearly be out of order for me to say why it was put in the 1955 Act, but I will attempt to explain why it is not necessary in the Bill before us.
If my hon. Friend will turn to Clause 3 (1), he will find that it provides—
Nothing in this Act shall be taken to restrict the purposes which are to be regarded as charitable independently of this Act.
There is a general proviso in the light of which all the provisions of the Bill must be read. Further, in Clause 1 (1), which is the subsection we are now discussing and the principal operative provision of the Bill, we find that there is a proviso added which says that
nothing in this section shall be taken to derogate from the principle that a trust or institution to be charitable must be for the public benefit.
If it is for the public benefit, it follows, I think, with the law of charities in the background, that it cannot be operated for profit.
There is one apparent but not real exception to that proposition, which is that even a purely charitable organisation may from time to time, as part of its recreational activities, organise such a thing as a dance or a whist drive and make a casual profit in doing so, the funds from that profit being immediately turned to the charitable purpose of the organisation. But that does not make it into a profit-making organisation. If my hon. Friend's Amendment were accepted, it might have the most unfortunate result of preventing a charity from making a casual profit of that kind on its recreational activities.
Although we appreciate my hon. Friend's thoughtfulness in putting down the Amendment, I must, for the reasons I have expressed, advise the Committee that it is not an Amendment we should accept.
I understand that my hon. and learned Friend's objection to the Amendment is that the law is quite clear in the sense of the Amendment without it, and that it would be otiose. That was, I think, his main objection. His second objection was that, if it were incorporated into the Bill, it might limit the making of a temporary profit by a charity even though that profit was not to be distributed. The second objection seems to me to be a good one, but one which the draftsmen available to the Government could surely put right quite easily before the next stage.
As to my hon. and learned Friend's first objection, is it quite clear that, as amending the law of charities, the Bill excludes any profit-making concern? I quite agree that but for the Bill that would be so, but the two passages he referred to as showing that it is still the case do not strike me in that way at all. Clause 3 (1) provides:
Nothing in this Act shall be taken to restrict the purposes which are to be regarded as charitable independently of this Act.
That, of course, does not in any way affect any additional bodies which are to be made charitable by reason of the Bill, which is what we are concerned with primarily in the Amendment. Secondly, my hon. and learned Friend called attention to the proviso to Clause 1 (1):
Provided that nothing in this section shall be taken to derogate from the principle that a trust or institution to be charitable must be for the public benefit.
It is surely possible to argue with a good deal of force that there are many activities in the provision of goods and services of all sorts, to the advantage of the public, which are undertaken with the profit motive in the background. Indeed, it is hard to hear from our Front Bench that there is in anyone's mind any suggestion that, because something is for the public benefit, that means that it cannot be profit-making as well.
I suggest, therefore, that there may be some doubt here. If my hon. and learned Friend is relying entirely on the old law of charities, by which undoubtedly the profit-making element in the wide sense is excluded, I hope that he will look again to see that there is nothing in this Bill which has upset that, and that all the previous law, when read together with this, will make it quite clear that profit-making bodies in the full sense of the word are not to have the very considerable advantages of tax exemption, rate exemption, stamp exemption and all the rest which are today so valuable.
I hope that my hon. and learned Friend will take this matter quite seriously. This is a very important Bill, and there is a feeling that there is a danger of it being rather rushed. This seems to be an important point. After all, we have not so far been given any legal authority for the view that there is nothing in the point, and I rather hope that the Government will not take it too easily.
There are many points in the Bill which have caused a good deal of concern, and I think that some of us were rather surprised to hear my hon. and learned Friend say, in effect, that because there had apparently, been no great public clamour about it, we need not worry over much. The House of Commons is the proper place to raise these things, and we are raising them today. As my hon. and learned Friend will see, a number of hon. Members have points to raise by way of Amendment or otherwise. I hope that we may have a little more coherent explanation on the point.
In answer to my right hon. and learned Friend the Member for Chertsey (Sir L. Heald), I should have thought that it was hardly necessary for him to suggest that we are not taking the matter seriously. We certainly are, and we have done all along. My right hon. and learned Friend the Attorney-General and I will endeavour to give the matter such skilful and patient consideration as we can command.
Our minds are open on that point throughout the Committee stage. I suggest that, before my hon. Friend expresses any kind of suffering, he should wait and see how the Committee stage goes.
My hon. Friend the Member for Darwen (Mr. Fletcher-Cooke) asked whether the Bill as drafted excludes profit making concerns. He pointed out that there are various kinds of profit making concern in the widest sense which perform public services in the widest sense. The answer is that the Bill does so exclude them, and there is no doubt whatever about it. Clause 1 (1), and, in particular, the proviso, is here dealing with a trust or institution which is charitable and says that such a trust or institution must be for the public benefit, which, ipso facto excludes profit making.
May I instance the case of a nationalised undertaking? I do not wish to introduce a controversial element here, but it could be argued that a nationalised board was for the public benefit; indeed, I think that it would be difficult to say that it was not. If my hon. and learned Friend's argument were to prevail, then it could be said that the activities of a public board would be made charitable simply because it contributed to some charitable body. It is opening it very wide indeed.
As I have said, there is a vast number of organisations and institutions, and some trusts, which are for the public benefit, but that does not make them into charitable trusts. One of the tests of a charitable trust is laid down here, and it is well known to my hon. Friend, who is a Chancery lawyer, which I admit I am not, that the public benefit test must, where appropriate, be satisfied. To say that every single kind of publicly provided service should, therefore, be regarded as a charitable trust because a kind of public service is provided is just stretching the conception of "charity" beyond all imagination.
Perhaps I might take the matter a little further. My hon. and learned Friend has read the two halves of subsection (1) disjunctively. I agree that if one reads the proviso by itself there is nothing in the Bill which would make a public board a charity, but if one reads the two halves together—and one has to do so—a public board may very well, to use of the words of the first half,
assist in the provision of, facilities …
which are made charitable by the Bill. The effect of the subsection would be that because the public board had assisted in the provision of the facilities its activities generally might be regarded as of a charitable character so as to exclude it, for example, from the incidence of Income Tax.
It seems to me that, although there is no difference of opinion in the Committee as to what ought to be done, there is a real doubt about the meaning of the subsection, and that doubt has not been cleared up by my hon. and learned Friend.
I really do not share my hon. Friend's doubts. With great respect to him, I think he must be under some slight misapprehension about the purpose of the proviso.
The first part of the subsection to which he has drawn attention—I emphasise this—is the part which is designed, subject to the powers in subsections (2) and (3), to restore the position to what it was before the Baddeley decision, and to take it no further. It would be difficult to fit a nationalised body into the scope of "charities" before the Baddeley decision.
My hon. Friend paid a great deal of attention to the proviso, but the proviso is there because we thought that it was necessary to make sure that the scope of the first part of subsection (1) was not too wide, not so wide that it would let in things which before the Baddeley case would not have been regarded as charitable. Therefore, the proviso is put in negative fashion:
… nothing in this section shall be taken to derogate from the principle that a trust or institution to be charitable must be for the public benefit.
Obviously, if we did not have the proviso there—here my right hon. and learned Friend the Member for Chertsey (Sir L. Heald) is right—we might have something which came within the first subsection and yet was not for the public benefit.
I have listened carefully to all that my hon. and learned Friend said in explaining the matter and to what has been said in criticism of it, and I can assure my hon. Friend—I need not, perhaps, go into detail about this—that the drafting of the Bill has involved months of consideration. I do not suggest that it is not capable of improvement, because any draft is, but it was—I am sure that my hon. Friend will agree with this, because he has had great experience of drafting—an extremely difficult thing to accomplish the task that we set out to perform, namely to restore the position to what it was before the Baddeley case without in any way enlarging the field of "charity". We believe that we have done that, and, on the basis of the best advice that we can get, we do not consider that there is any need to make any further alteration to the provision on the lines of that proposed by my hon. Friend the Member for Norwich, South (Mr. Rippon).
Indeed, for the reasons given by my hon. and learned Friend in replying initially, the insertion of the words:
and are not provided for profit
would, in fact, operate to be restrictive of the proper activities of a charitable institution. For that reason, we cannot accept the Amendment. I am grateful to my hon. Friend for having raised the matter, because we certainly do not want to overlook anything in this difficult field which might give rise to problems hereafter.
Perhaps it will help the discussion if I say that when I first looked at the Amendment I was very much attracted by it; but, on reflection, I felt that it was wrong to look at the Bill as if it were in complete isolation from all that we know about the law relating to charity. That is to say, if all the courts had to do was to construe the Clauses of the Bill with nothing else at all to help them, I could see that there would be some substance in the Amendment.
It seems to me that the courts will not be in that position at all. In any case which arises, once the question is raised whether a trust or institution is or is not a charity a whole range of statutes and decisions going back many hundreds of years will have to be considered, among them the Baddeley case. I should say that it will be absolutely clear to the judiciary, not from what we say in the House of Commons—because that is not a matter which will influence it—but from the Bill itself that this is part of the law of charity and, as it were, the last little bit that we are putting on at the present moment. If the matter is viewed with that background, it must be absolutely clear that an organisation existing purely for the purpose of making profit would not have a chance of being considered as a charity.
The Opposition will certainly support the Government in the attitude which they have taken towards the Amendment. At the same time, I am very grateful to the hon. Member for Norwich, South (Mr. Rippon) for having brought this important matter forward.
I am a little puzzled by what the hon. Member for Wigan (Mr. R. Williams) says. I should like to defer to his legal knowledge in these matters, but when he says that the Clause has to be read subject to all the previous legal decisions, including the Baddeley case, I am rather disturbed. I thought that today in Parliament we were deciding what the law shall be, and I would hope that nobody in the future will say, "That is what the House of Commons has said, but we can now go back to the previous legal decisions and say that that is not what the House of Commons meant at all."
I should like to draw the attention of the hon. Gentleman to the words:
Subject to the provisions of this Act, it shall be and be deemed always to have been charitable to provide …
certain things. All the courts are concerned with is whether those words are complied with or not. It is no good our saying that in another case the words do not mean what they say. We must put in the Measure words which will remove any doubts so that it will not be necessary to have another case going to the House of Lords. That is one of the matters with which a great many of us, not only in the House but outside, are concerned. The result of the Bill may very well be that, instead of settling the law once and for all, it will merely encourage another case on the Baddeley lines to come to the House of Lords, which some people may think quite advantageous but which probably would not be desirable in the public interest.
Before I ask leave to withdraw the Amendment, I should like to say that I believe that the discussion we have had on it shows that there should be a "divine pause". The right hon. Member for Ebbw Vale (Mr. Bevan) had some scathing remarks to make the other day about the divine pause and the whole wasteful apparatus of another place but, as my right hon. and learned Friend the Member for Chertsey (Sir L. Heald) has said, it is the House of Commons that is making the law, and we are concerned at the extremely short interval in which to frame Amendments which has elapsed between the Second Schedule and this debate. We should very much hope that there will be a further opportunity for the matter to be considered, inside and outside the House of Commons, so that we can be absolutely sure at the end that we have done our duty and have drafted the Bill in as clear and precise terms as we are capable of doing as a legislative assembly.
The Bill has been published for a considerable time. It has been through the House of Lords and my hon. Friend could have been preparing Amendments from the time of its publication to the House of Commons. I have heard what my hon. Friend has said more than once about the need for an interval, but I ask him to bear in mind that there are a number of charities, or at least bodies which were treated as charities before the Baddeley decision of 1955, which have been anxiously awaiting legislation of this kind. We shall, of course, consider carefully any arguments which hon. Members advance and I hope that we shall make the Bill as good a Measure as can be, but I should like to see it, after this long interval, reach the Statute Book as soon as possible. I would ask my hon. Friend, therefore, not to press for any delay until we have seen how the Committee stage goes and how far we can agree on these matters.
The Baddeley decision, of course, was given three years ago, and the charities have been waiting three years for the issue to be resolved. We are all anxious that it should be, but I cannot believe that it would do any great harm if we waited another month or so, particularly bearing in mind that these charities are imperilled only by the Inland Revenue which is not likely to move until Parliament has moved. However, in view of the helpful suggestions made by the Attorney-General and by my right hon. and learned Friend the Member for Chertsey, I beg to ask leave to withdraw the Amendment.
I beg to move, in page 1, line 16, after "of", to insert "directly".
The Amendment is designed to clarify, if possible, the definition of social welfare in Clause 1 (2) and to insert in subsection (2, a) the word "directly" so that it would read:
the facilities are provided with the object of directly improving the conditions of life for the persons for whom the facilities are primarily intended. …
There has been a good deal of discussion in the courts on what is meant by "social welfare", which is the expression used in Section 8 of the 1955 Act. There is no attempt in that Section to define social welfare, but the courts have been doing their best to ascertain what Parliament intended on that occasion and there has been a good deal of discussion on this question of directly or indirectly improving the conditions of life.
One view is fairly summarised by Mr. Justice Wynn-Parry in the case of Berry v. St. Marylebone Borough Council, in which he said:
It would appear to me virtually impossible to attempt a definition of this phrase, but I am inclined to agree with counsel for the defendants that one must discover in the operation of the undertaking some direct impact upon the proposed beneficiary, his example being a social centre established in Liverpool with a view to encouraging better relations among the various races which are to be found from time to time in that great port. While regarding it as no more than an indication and not a definition a what would properly be regarded as the content of the phrase 'social welfare,' I would be content to adopt the sentence which counsel for the defendants put forward in argument, viz., the provision of benefits or facilities which tend directly to improve the health and condition of life of the class of persons concerned.
That definition was broadly accepted in the Court of Appeal.
This was followed by Lord Justice Parker, in another case, in which he said:
Unless, therefore, some restriction can be implied from the context, we should have thought that the provision of benefits which tends directly to improve the health or conditions of life of individuals comes prima facie within the expression 'social welfare'.
The courts have, under Section 8 of the 1955 Act, made this distinction in a number of cases.
My right hon. and learned Friend the Attorney-General will be aware of the decision which the courts reached in the recent case concerning the General Nursing Council, part of whose activities was directed to maintaining a register of nurses. It was held that that part of its objects, not being directly concerned with the benefit of individuals, did not fall within the context of a charitable or social welfare. The sort of case that comes to mind under this provision is that where recreational facilities are provided for nurses. It might be argued that the infirm and disabled are indirectly benefited if recreational facilities are provided for nurses, because those would raise the status, health and efficiency of nursing. But that would be a rather different decision from that which the court arrived at in the case of the General Nursing Council.
It may be that my right hon. Friend is quite happy that it is sufficient if facilities should be provided with the object of directly or indirectly improving the conditions of life, but it seems to me that it would be preferable if we had this provision in clear terms and that it should either be, as the Amendment suggests, "directly improve" or, if that is not what is intended, that we should have the words,
… directly or indirectly improve the conditions of life …
My hon. Friend the Member for Norwich, South (Mr. Rippon), in a most interesting argument, has put forward a matter which we feel would give rise to some difficulty. I would remind the Committee that Clause 1 (2) does not define social welfare but prescribes certain minimum conditions which must be fulfilled before the court can decide that the facilities are provided in the interests of social welfare.
In support of his argument that the facilities should be provided with the object of directly improving the conditions of life for the persons for whom they are primarily intended, my hon. Friend quoted the dictum of Mr. Justice Wynn-Parry in the St. Marylebone case, when the learned judge was considering social welfare in a much wider context. He was considering the general application of social welfare, but, of course, here the conception of social welfare is relevant only in the narrower sense that it has a bearing on whether or not a charity is a recreational charity.
If we were to put the word "directly" in the place where my hon. Friend suggests, it would have the following results. First, it would oblige the courts to find some special meaning for it. Secondly, it would oblige the courts to give some special effect to that meaning. Thirdly, it might give rise to difficulties of definition in the great variety of circumstances in which it would have to be considered. Fourthly, and this is the greatest difficulty I see, it would lead to extreme difficulties of proof.
In other words, those who wished to establish that there was a recreational charity within the meaning of this Bill might very well be hard put to it to show that the facilities were provided with the object of directly improving conditions of life. Therefore, the addition of the word "directly" would narrow the scope of the Bill, and might well result in some potential recreational charities being held not to be recreational charities. We think that would be a pity and would to some extent diminish the purposes of the Bill.
I hope my hon. Friend will endeavour to see the matter in that light and perhaps not press his Amendment.
I say straight away that I am afraid that I cannot accept that explanation. In so far as the courts have been directing their attention specifically to this point, if we say nothing the courts, in construing the provision, will have to decide whether the House of Commons meant "directly improving the conditions of life" or whether it meant to refer to "objects which directly or indirectly …".
If my hon. and learned Friend and the Government wish to widen the scope, or to make clear that the scope is wide enough, I would not raise any objection to "directly or indirectly improving …". But what will be the position of the organisation which provides recreational facilities for nurses? Will it be in or will it be out? As things stand it must be a matter of decision for the courts because, on the face of it, it can only be said that this will only indirectly improve the conditions of life for the persons for whom the facilities are primarily intended.
I am arguing that female nurses will come in under paragraph (b, ii) of Clause 1 (2). As things stand I do not know what the position of male nurses may be, and we shall have to consider that later.
My hon. Friend is aware that both paragraphs (a) and (b) have to be satisfied, and the fact that a charity comes in under paragraph (b) does not avoid the necessity of satisfying paragraph (a) as well.
Yes, I agree that they may come under "social and economic circumstances." I am grateful to my hon. Friend for drawing attention to another difficulty that we must meet in interpreting the provision as it stands. I hope, in spite of what my hon. and learned Friend has said, that the Government will consider the desirability of inserting the words "directly or indirectly" on the Report stage if they will not insert the word "directly" now.
I support the hon. Gentleman the Member for Norwich, South (Mr. Rippon), but I find myself a little confused, and perhaps the Attorney-General will help us? I can understand the contention that the word "directly" is restrictive, for it would suggest that "indirectly" would not fall within the scope of the provision. If, however, we added both "directly and indirectly" would it mean any more than if we had neither?
May I say in confidence that I am supporting the hon. Gentleman because the town clerk of the city I have the honour to represent in part has asked me to do so. In supporting him, I should not like to strain my feeling of common sense or understanding of the phrase in this subsection. If the Attorney-General can tell us that the existing words "with the object of improving" are at least as good as the words "with the object of directly or indirectly …", and better than adding the word "directly", I shall feel happier than I do at the moment.
I hope I can make the hon. Gentleman feel happier, because he has got to the substance of the matter—such substance as there is. It is difficult to see how recreational facilities can improve conditions of life otherwise than directly. If we inserted the words "directly or indirectly" they would cancel each other out and leave the position as it is. If we inserted only the word "directly" we should run the risk, which we want to avoid, of excluding from the scope of the Bill something which, prior to the Baddeley decision, would have been regarded as satisfying this requirement.
For those reasons we think it is better to leave the Bill as it is. It is not always a very good way of drafting a Bill, which has to be construed by the courts, to take a particular dictum out of a judgment and insert it into a Measure.
I have listened to all the tortuous arguments about one word and I have a suggestion to make which may help the Committee out of its difficulty As it is obvious that the law of Scotland in this regard is very much superior to the law of England, why not scrap the Bill and adopt the law of Scotland?
I beg to move, in page 2, to leave out lines 2 to 5 and to insert:
(i) these facilities are provided for persons having a common qualification of youth, age, infirmity or disablement, poverty, adherence to a religious denomination or social and economic circumstances.
The object of this Amendment is to try to get some clarification on the point of the class of the community which might benefit under the provisions of this Bill. As was pointed out in the debate on its Second Reading, the Bill purports to deal only with one set of difficulties raised in the Baddeley case, those in relation to recreational charities.
There is a second point of considerable difficulty which was raised, but not resolved in the Baddeley opinions, and that is in relation to what constitutes a sufficient class of the community. There was a divergence of opinion between Lord Simonds and Lord Reid. Two law lords expressly reserved themselves on the point, and one said nothing. I am sure it would be the wish of many people that this matter should be clarified, so that there can be no question of a case such as the Baddeley case having to go right up to the House of Lords again, the one point having been clarified, to ascertain the position in regard to the second.
Lord Simonds expressed the view that the beneficiaries, being confined to members or potential members of the Methodist Church in that case, did not constitute a sufficient class to satisfy the necessity of a benefit to the public. On the other hand, Lord Reid expressed the opinion that the members of a particular church constitute a section of the community under the fourth head of charity for purposes beneficial to the community, just as much as under the third, namely, the advancement of religion.
If I may detain the Committee briefly, I will refer to two portions of the opinions expressed in that case. First, Lord Simonds said:
It is, however, in my opinion particularly important in cases falling within the fourth category to keep firmly in mind the necessity of the element of general public utility, and I would not relax this rule. For here is a slippery slope. In the case under appeal the intended beneficiaries are a class within a class; they are those of the inhabitants of a particular area who are members of a particular church: the area is comparatively large and populous and the members may be numerous. But if this trust is charitable for them, does it cease to be charitable as the area narrows down and the numbers diminish? Suppose the area is confined to a single street and the beneficiaries to those whose creed commands few adherents: or suppose the class is one that is determined not by religious belief but by membership of a particular profession or by pursuit of a particular trade. These were considerations which influenced the House in the recent case of Oppenheim. That was a case of an educational trust, but I think that they have even greater weight in the case of trusts which by their nominal classification depend for their validity upon general public utility.
Lord Reid, on the other hand, said:
But a meticulous examination of words used by judges, however eminent, cannot be decisive if these words were used in cases where the present question was in no sense in issue, so I turn to consider the authorities. In Verge v. Somerville the bequest was 'unto the trustees for the time being of the "Repatriation Fund" or other similar fund for the benefit of New South Wales returned soldiers.' There was no such fund in existence, but it was held that this was a valid charitable trust and that a scheme should be settled. The judgment of the Board was delivered by Lord Wrenbury. He made it plain that this case fell within the fourth of Lord Macnaghten's divisions of charity, and he stated the test to be applied in the words which I have already quoted, and I repeat the crucial words: 'The inhabitants of a parish or town or any particular class of such inhabitants (the italics are mine), may, for instance, be the objects of such a gift.'
I should have thought it desirable, now that the House has an opportunity of considering the matter, to try to resolve the considerable difference of opinion which there appears to be between Lord Simonds and Lord Reid, particularly as we do not know what decision the House of Lords would have reached in the Baddeley case if the matters with which we are dealing in the Bill had then been resolved and were not in issue.
I am sure that it is the wish of large numbers of people that there should be no doubt about the point that limitation to a particular religious denomination—Methodist, Presbyterian, or whatever it may be—should not be prejudicial. I should have thought that it was one of the most obvious cases where it would be accepted that there was a good reason for their carrying on their activities under the umbrella of their own religious belief. One might ask what the position of a Jewish boys' club would be or what that of a Roman Catholic scout organisation would be under the Bill as it now stands?
I hope that the Government will give some consideration to clarifying this matter which has caused considerable anxiety and doubt in the minds of those people who run charities as part and parcel—or at any rate to some extent—of the promotion of their religious beliefs. We know that the position is quite clear if the charity comes under the heading of "promotion of religion," but recreational charities will nearly always be under the fourth head and it would be helpful if their position could be clarified.
My hon. Friend has asked for clarification on a point of law which, he said, arose for consideration in the Baddeley case. In fact, he said nothing in support of the Amendment beyond moving it. It is necessary for me to say why we do not feel it possible to accept an Amendment on these lines. I am sorry to disappoint my hon. Friend like that. I will deal later with the substance of his speech.
The Amendment seeks to make mere adherence to a particular religious denomination a sufficient qualification for being a special object of social welfare on a par with youth, age, poverty and so on. As a necessary corollary to that, the reference to "need", which appears in line 2 in page 2, has been removed because, of course, mere adherence to a particular denomination cannot create a need for recreational facilities or for anything else.
I am sure that, on reflection, my hon. Friend will appreciate that to provide in this way that the fact of belonging to a particular denomination automatically makes a person an object of social welfare is to make nonsense of the whole subsection and to make the Bill absurdly wide. The principle by which we stand is that indicated in Clause 1, that the facilities must be either for the class in special need listed in paragraph (i) of subsection (2, b), or for the public generally, or at least women generally.
That category represents, in the view of most people concerned, a category which, prior to the Baddeley case, was regarded as charitable. It is not our intention to extend it. Indeed, to depart from this would be to extend the range of "charity" unwarrantably and, as has often been said, that is not the Government's intention in this Bill.
If my hon. Friend believes that the Bill will put an end to all charity cases in the courts, I can only say that he possesses far greater optimism than I do about that. It would be extremely difficult in that complicated aspect of the law to draft a Bill which would have that effect. I ask him to bear in mind the limited objective of the Bill, which is a difficult one to achieve and which is to restore the position to what it was before the Baddeley case.
My hon. Friend referred to what Lord Simonds said in the course of his opinion on another point and to Lord Reid's dissenting speech. My hon. Friend has said, quite rightly, that a trust for the advancement of religion is a good charitable trust, even if it is only for the advancement of one religion or one sect. The observations made by Lord Simonds in the Baddeley case on the point to which my hon. Friend referred were directed to a trust limited not only by reference to the religious affiliations of the beneficiaries but also by reference to its geographical limitations. It is only if both those limitations apply that such a trust runs the risk of being invalid.
It is not possible in a Bill of this kind to define what extent in relation to a particular trust will satisfy the court that it is sufficiently extensive to meet the requirements of the law of charity. Indeed, the Bill is not intended to deal with that. That point existed long before the Baddeley case. My hon. Friend referred to the Oppenheim case and there was also the Williams case in the House of Lords on that point.
I make no apology to my hon. Friend when I say that the Bill is not intended or designed to tackle that very great problem. It might be the subject of some other legislation, but it is not the object of this legislation to resolve that one among the many problems affecting the law of charity.
On this occasion, I find myself rather more in agreement with my right hon. and learned Friend the Attorney-General than with my hon. Friend the Member for Norwich, South (Mr. Rippon), who moved the Amendment.
I do not want to enlarge this Clause as the Amendment would do, because this is not a question merely of interpretation. There is some real substance in it, and I think the Attorney-General is right. On the other hand, I am not at all satisfied that, in fact, as drafted the Clause may not go further than the Attorney-General indicated. As I understand the matter, these two parts of subsection (2, b) limit the kinds of classes of person in whose favour a fund must have been given in order that it should be charitable. I think that the logical order should be the other way round.
In the first place, obviously, if it includes the whole community, then it is all right and there is no disagreement anywhere; or if it includes one section, we shall be able to deal with that point when considering another Amendment. In the first half of paragraph (b), the person must—
have need of such facilities as aforesaid by reason of their youth, age, infirmity or disablement, poverty or social and economic circumstances;
What is puzzling me a little is what is the meaning of "social and economic circumstances." As I understand the matter, the purpose is not to extend the provisions of the Bill so as to cover charities in favour, for example, of the employees of a particular factory, because it is undesirable, on the whole, that we should have charitable gifts in favour of such employees unless such gifts are charitable otherwise. I think everyone will agree with that. I am not at all certain that we could not say that the employees of a particular factory are not, so to speak, a class which could be defined by reference to their "social and economic circumstances."
Again, and I think this is important, in the cases of the miners' welfare funds, which are dealt with by the next Clause, the Clause is limited to existing trusts, and it would not legalise future trusts in favour of miners and miners alone. I am not certain that it may not be that these words "social and economic circumstances" would not, in fact, enlarge this Clause so as to bring in miners, and, again, other sections of the community.
This is difficult ground, and there is room here for genuine conflict. I do not want to be controversial but I want to know what my right hon. and learned Friend has in mind. If, for example, this excludes miners as a class, or fishermen as a class, or the employees of a particular factory as a class, does he think that "social and economic circumstances" must mean something quite general, and not something particular, for example, the nature of their trade?
May I ask my right hon. and learned Friend the Attorney-General whether he has had in mind, in that connection, the very puzzling fact that there is already in the Copyright Act, 1956, a provision about social welfare which deals with the question of the performance of sound recordings. I understand that there was recently a case dealing with a miner's welfare fund in which it was decided that it did give this exemption. Does it or does it not give this exemption under this Bill? I would have thought that what we have heard so far would suggest that it does not, but can it really be satisfactory to have social welfare in one Act meaning one thing and in another Act meaning another thing?
Does not my hon. Friend agree with me that, while we do not disagree with my right hon. and learned Friend's view about this Clause in relation to the Amendment, it is very desirable that, when we are considering such words as these that we should give some time to the question whether social welfare in this Bill is being defined in terms consistent with the provisions of previous Acts of Parliament or not?
My hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth) has asked about the meaning of the words "social and economic circumstances". They are words which we selected, after much deliberation, to meet a particular problem—the problem which we encounter particularly, for instance, in relation to the Missions to Seamen.
We cannot say that seamen arriving in port are suffering from poverty. On the other hand, it is obviously desirable that the missions to seamen should remain a charitable institution, and we felt that the wording here—"social and economic circumstances"—would clearly cover that type of charitable institution. That is what these words are designed to achieve. We still feel that the word "social" by itself would be far too wide, and would let in a number of institutions which were not charitable before the Baddeley decision, and that is the explanation for that choice of words. This question really does not arise on the Amendment moved by my hon. Friend, but my hon. Friend the Member for Hendon, South raised it and I thought it convenient to deal with it straightaway.
The inclusion of the words referred to in this part of the Bill does not enlarge the scope of the law relating to charities beyond what it was before the Baddeley decision. It certainly does not go as far—because we have these words "social and economic circumstances"—as to make the activities conducted by a company or corporation on behalf of its employees charitable activities. There are clear decisions to the contrary, which remain unaffected by the Bill—decisions based upon the grounds that such activities are not for the public benefit. That is one reason why we have kept, and thought it desirable to have, in an earlier part of the Bill the express proviso in regard to the public benefit.
I am grateful to my hon. Friend for raising the point, because it has enabled me, perhaps, to save a little time, and I hope to satisfy him that real and prolonged thought has been given to this choice of words. It is not an easy one, but I think it is satisfactory for the purpose.
My right hon. and learned Friend the Member for Chertsey (Sir L. Heald) asked about the Copyright Act. I must say that I cannot see how any question about the Copyright Act can arise on this Amendment, but, to answer my right hon. and learned Friend quite shortly, I would say that the Bill has been drafted after consideration of all the other statutory provisions. The real object of the Bill, as I have said more than once, is to reverse the effect of the Baddeley decision. It is not meant to have an impact on the wording of the Copyright Act as, in our belief, it is effective for the purposes for which it is designed.
May I ask my right hon. and learned Friend for some clarification of the statement he has just made that the effect of the Bill is to reverse the decision in the Baddeley case? With respect, I suggest that it does not do that, and in so far as the Bill still leaves unresolved—
I said that it reverses the effect of the Baddeley decision. We are leaving the Baddeley decision standing as it is, but providing that what were thought to be charities before the Baddeley decision are treated as charities again.
I am very much obliged to my right hon. and learned Friend, and I think the Committee is grateful for the careful and patient way in which he has been explaining what the Clause does. No one on this side of the Committee would suggest that this is other than a very difficult piece of drafting, and there can be no doubt that the Government have given great care to the matter. At the same time, we feel that there are certain ways in which, perhaps, the draft may be clarified and doubt removed.
The Amendment raises the wide question whether, now that we have the opportunity—the first since the Mortmain and Charitable Uses Act of 1888—to consider the law of charities, we should also resolve the second doubt about the Baddeley case, namely, the question of what constitutes a sufficient class of the community, with particular reference to the charitable activities of church organisations. My right hon. and learned Friend has said that in any event the Baddeley decision applies only where facilities are provided in East Ham, or Leyton, let us say, for Methodists or potential Methodists, and that it would not apply where these facilities were provided for Methodists at large.
In the majority of cases, however, the facilities are provided for a class within a class—for those inhabitants of a certain area who are Methodists or potential Methodists, or Presbyterians, or whatever the religious denomination may be. Many organisations and charities may be affected unless we clear up this point.
Earlier the hon. Member gave two examples. He asked us to consider the case of a Catholic troop of scouts and a Jewish boys' organisation. Are not they in any event covered by the wording of the Bill? Subsection (2, b, i) refers to the need of certain persons for such facilities:
by reason of their youth, age,
and so on. Are not they automatically covered in any event, without there having to be any consideration of the question whether they belong to a certain denomination?
Yes; subject to the satisfaction of the other provisions, that is probably so. It is not always easy to suggest an example that is directly in point. No doubt my right hon. and learned Friend can clarify the position, because it is causing doubt. It would be helpful if he would make it clear that a Roman Catholic scouts' club or a Jewish boys' club would be within the scope of the Bill.
Unfortunately, we shall still not know the position about recreational facilities provided by a church organisation, even if those facilities directly improve the conditions of life of the beneficiaries. My right hon. and learned Friend also made the point that the Amendment as drafted omits the word "need", but it may be argued that that word is not necessary in this context because the facilities have to improve the conditions of life, and it is difficult to see how the provision of recreational facilities can be needed for any other purpose than directly to improve the conditions of life. It would therefore seem that that is not necessarily an overriding objection to the Amendment.
I have been asked by the town clerk of Southampton to support the Amendment. The town clerk is learned in the law and I am a layman, but, having heard the hon. Member move the Amendment and the Attorney-General reply, I feel that the Amendment is not necessary. As I read the proviso that we are discussing, no church is excluded merely by being a church, and no sect is excluded merely by being a sect. The reasons listed are youth—and this would apply to both Catholic and Jewish communities; age—which would include old folk who are Methodists or Plymouth Brethren, or whatever they may be; infirmity, and so on. All religious sects would be included.
The sub-paragraph pinpoints the features which make a trust a charitable one, and if we add the words of the Amendment we shall be broadening the aim of the Clause to include every aspect of the work of any sect. The Attorney-General has answered the point.
It is not quite so simple as that. The difficulty with many of these organisations—especially church organisations—is that they provide the facilities primarily but not exclusively for youth. They are available to the whole church community. There may be some perfectly fit adult males in respect of whom one would doubt what the decision would be.
Secondly, the concern of local authorities does not turn upon the Amendment. It arises out of the fact that we are defining "social welfare"—a phrase which occurs in the Rating and Valuation (Miscellaneous Provisions) Act, 1955, and is now being interpreted in the courts, and which also appears in the Copyright Act, 1956, and the Miners' Welfare Act, 1952. It is a phrase which has been subject to a great deal of judicial interpretation, and which has given rise to grave doubts.
The interest of local authorities in the matter arises from the fact that a committee has been set up to consider the operation of Section 8 of the 1955 Act, which provides a measure of relief from rates to various organisations. It is felt that in whatever terms we define the phrase "social welfare" in the Bill—whether we include religious denominations or not—the deliberations of the Pritchard Committee must be influenced. There is strong feeling on the part of the Association of Municipal Corporations about the fact that it has never been consulted.
The hon. Member has gone so widely outside the terms of his Amendment that, since we have already debated the point that he is now raising, and since that point has been resolved by his withdrawal of an earlier Amendment, he is beginning to strain the patience of some hon. Members. He is going over the same argument, upon an Amendment to which it has no relevance.
I beg to move, in page 2, line 4, to leave out "or social and economic circumstances".
I made some reference to this Amendment during the Second Reading debate. I may be more dull than usual, but I did not understand the explanation of the phrase "social or economic circumstances". The Clause appears to have a cutting-down effect. It is not sufficient to prove that the trust concerned is for social welfare—whatever that might be; there is a good deal of controversy about it at the moment—but it also has to be limited in the way set out in the subsection.
Most of us could make a ready judgment on the question whether facilities were provided for people by reason of their youth. It may be that as we get older we like to lift the age of youth, but we should have a fair shot at saying whether somebody is young or old. "Infirmity" speaks for itself and so does "disablement" and "poverty". But I ask the Committee, what do we mean by "social circumstances"? I am not asking what is meant by "social welfare", but what is really meant by "social circumstances". Is it a sort of reference to colour, or grade or to geography or party?. What are the social circumstances which make it necessary for a person to have his condition of life improved by this trust?
The same argument would appear to apply to "economic circumstances". As I said during the Second Reading debate, that is already known and has been given a fairly wide definition already. It does not mean actually that people are distressed. But when we have the wide meaning for poverty given by the courts, this seems to me to be putting in a phrase for judges to interpret without any clue as to what is meant by the words, "social and economic circumstances." In a charitable trust there can be charity for aged people irrespective, so to speak, of a means test, and that also applies in the case of blind people. But here, as the Clause is drafted, is brought in another category of "social and economic circumstances."
I believe that it was said that that was necessary to give more flexibility to the other categories. I am doubtful whether that is so, but if it is meant to give flexibility it is impossible to see what that flexibility is to be or where it begins and ends. I ask my right hon. and learned Friend to consider whether this is not a little surplusage; some words put in to fill up a gap. No one seems to be quite sure what they mean or what they do, but it seems to be considered that they will not do any harm to anybody—except all the people who have to litigate upon the meaning of these vague words. Unless they mean something, and examples are given, I ask the Committee to press that these words be left out.
I am glad that my hon. and learned Friend the Member for Bolton, East (Mr. Philip Bell) has given me an opportunity to explain this matter to him. It was explained to the rest of the Committee very clearly by my right hon. and learned Friend, when he dealt with the last Amendment. It is quite simple.
As my hon. and learned Friend knows, it is the object of the Bill to ensure that trusts and institutions which have long been generally regarded as charitable should be so regarded in the future. With that in mind, I ask my hon. and learned Friend to consider this Amendment. I regard this as a probing Amendment, but, were we to accept it, we should exclude some institutions which have been treated as charitable in the past. My hon. and learned Friend asked for an example and the most vivid and clear example is that provided by The Missions to Seamen, which provide facilities for rest and recreation as well as accommodation.
There are circumstances where individuals, often men—I stress that in view of what may be thought in relation to women in this Bill—find themselves cut off from their normal home life and social environment. Although not suffering from poverty they are unable to pay for the recreation and leisure-time occupation that they need, because their jobs take them into various parts of the United Kingdom. We say that such a combination of social and economic circumstances has been recognised in the past as creating a need, the satisfaction of which is a proper object of charity.
It is thought, therefore, that we should preserve that principle for the future in this Bill. It will be for the courts to apply that principle to other categories than the missions to seamen, should any particular case arise.
I do not think that the courts will have the difficulty in interpreting these words which my hon. and learned Friend has experienced. The words "social and economic", if taken separately, would, I agree, at once give rise to difficulty in the context of this Bill. That is why we did not use either of them singularly, but have used them together, and it will be the duty of the courts to interpret them together, and to consider the phrase "social and economic circumstances." In considering that phrase, I think that the courts will come to the conclusion that when men find themselves in circumstances in which their lives have to be led partly away from home; where, although they are not poverty stricken, they are certainly not rich enough to provide themselves with the facilities they may reasonably need or even with essential facilities, and such facilities are provided, it would be right to regard them as having been provided in the interests of social welfare. With that explanation, I hope my hon. and learned Friend will feel happier about this matter.
I admit that I was absent without leave earlier in this discussion. These words seem to me to cover the particular example which has been quoted. My anxiety is whether they may not cover a great deal more, and how they may be limited. But I do not wish to detain the Committee, and I beg to ask leave to withdraw the Amendment.
I beg to move, in page 2, line 7, after "or", to insert:
the male members or the".
This Amendment is designed to clarify a point which arises under Clause 1 (2, b, ii). Facilities are to he available for the
members or female members of the public at large.
As drafted, it would appear that this extends a special provision to female members of the public at large. My right hon. and learned Friend said that it is not the intention in this Bill to make any amendment in the existing law of charity. It would appear that this is a novel provision which goes much further than the requirement giving some precision to the position of Women's Institutes and bodies of that kind, as we were told during the Second Reading debate that it was the desire of the Government to do. It lays down a general and, to my mind, a novel proposition.
Take the position of the recreational facilities provided for nurses. If it can be said that these facilities are provided for the object of improving their condition of life, they would appear to come within the provisions of (b, ii) in that they are provided for the
female members of the public at large.
We shall deal in a moment with the question of the "public at large". It would appear that this would not apply to nurses in East or West Ham, but it would have to be the nurses of the whole country. If the facilities are provided, apparently they would be social welfare for female nurses but not for male nurses. That is an illogical distinction.
On the Second Reading, my hon. and learned Friend made the point that women are provided with facilities which they could not normally provide for themselves and are, therefore, in a category different from the ordinary men's club, which has normally been regarded by the courts as a self-governing body. I would have thought that point was covered by the proviso in Clause 1 (1):
Provided that nothing in this section shall be taken to derogate from the principle that a trust or institution to be charitable must be for the public benefit.
The test of public benefit in that sense will still remain. It would be illogical to restrict the advantage of the Bill to female members of the public at large and not to
allow, in appropriate circumstances, the same facilities for male members.
This point was taken in another place, where the argument was put forward that the Bill said that a trust or institution could be charitable although its benefits were restricted to women, and that organisations restricted to men were regarded as incapable of being charitable. The point was also made that there was all the difference in the world between removing a disability in law and creating a privilege. We are accustomed to removing disabilities from women, but it is quite another matter to create a privilege.
On the Second Reading, we all accepted the argument advanced by my hon. and learned Friend that it would probably be undesirable to attempt any new definition of charity and that it was necessary to keep the Bill restricted in its scope as far as possible and not to introduce unnecessary new amendments of the law. That is something that we may well accept; but it is curious, as was pointed out in another place, that while the Government have rejected the recommendations in the Report of the Royal Commission on Taxation of Profits and Income that there should be a new definition of charity—a rather more restricted one than many of us would wish in any event—nevertheless my hon. and learned Friend has introduced a Bill which creates a wholly new principle which has never, to the best of my knowledge, been raised in the courts in this way at all. I hope, therefore, that the Government will very seriously consider some amendment of the Bill on the lines that I have suggested.
I would reinforce what has been said by my hon. Friend the Member for Norwich, South (Mr. Rippon). I would ask one question of the Joint Under-Secretary of State, to which I would request a perfectly clear and definite answer. Would he be good enough to answer this question: is it not right to say that the Clause introduces a wholly new principle that has not been suggested either in a judgment in the courts, let alone the opinion of a learned Law Lord, or by anybody who has ever considered the problem of charities or charitable trusts? Will he further disagree or agree that the principle does not appear to be based upon considerations of law, morals or common sense?
Let me answer the challenge of my right hon. and learned Friend the Member for Chertsey (Sir L. Heald) first. We say that we agree that it so happens that this principle does not appear to have been tested in any decided case in the courts. I would not go further than that in the judicial history of the matter. Of this I can assure my right hon. and learned Friend, that for many years the interpretation placed upon the law by the Inland Revenue has been in the sense embodied in the Bill. The question is whether we should continue the attitude and the practice of the Inland Revenue.
The broad principle underlying the Bill—if it is not rude to use the analogy in connection with the members of the fair sex—is that when the bone is in the dog's mouth we shall not remove it. This is a bone which, quite clearly, has been enjoyed by women's organisations for some time in the past. Perhaps I may explain why.
This is a complicated matter on which my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth) will no doubt have an opportunity of catching your eye, Sir Gordon. Fortunately, this being the Committe, I can inflict as many speeches on hon. Members as are necessary. I shall be delighted to deal with my hon. Friend's point later. May I deploy my case first?
Consider the effect of the Amendment, which would add the male members of the public to the Bill so that they would be one of the particular classes qualifying for the facilities to be the subject of social welfare. The effect of the Amendment was debated in another place. I think that it was the only Amendment which was debated there; and a very full and interesting debate took place.
The effect would be to make charitable the recreational clubs and institutes confined to men. The Bill is directed to confirming the status of institutes regarded as charitable prior to the Baddeley judgment, such as Women's Institutes. It is part of Government policy not to extend the field of charities. The Amendment would introduce a new and dangerously extended class of trust which has hitherto been excluded.
It is implied in the speech made by my hon. Friend the Member for Norwich, South (Mr. Rippon) that clubs and institutes provide recreational facilities confined to men's clubs, which have never before been treated as established for charitable purposes. I do not think that my right hon. and learned Friend the Member for Chertsey will find a decided case in which men's clubs have been so regarded. The absence of any contrary decision of the courts suggests that it is not only good law but good sense.
Men, other than young men and old men, have generally been in a position to provide recreation for themselves. Generally speaking, women, in the past, have not been in that position. I concede the point that it is a bit difficult to generalise when talking about this matter. The man has very often been the wage-earner, whether as husband or father, and the mother has often been the person who has had just the bit of housekeeping money. For that reason, Women's Institutes and other women's organisations have grown up. There is good reason for the view that as a class men are not in any special need of the charitable provision of places of recreation such as the Bill has in view.
An apparent exception will arise, but again I do not think it is a real one. Sometimes a local institute or ex-Service men's club might have been confined to men when it first started, but eventually the trust may have been extended so that women were admitted. It may have come to be used by both sexes and become the village hall. In a case like that no doubt it would be used by the public at large.
An institute providing educational facilities and confined to men in the first instance may never have admitted women. It may have become a charity through being an educational charity. There is an apparent exception, but we must not allow consideration of these apparent exceptions—which are not real ones—to cloud the issue. The real fundamental issue is that if we allowed the Amendment, or did not have the limiting words:
members or female members of the public at large
any drinking club might well come to be regarded as charitable. That, I am sure, would be a situation which we would wish to avoid.
I hope that the explanation is understood by my hon. Friends and that they will realise we have not introduced a new principle. We have not created a new privilege. Here, as in other parts of the Bill, we are trying to confirm and clarify part of the law about which doubts arose as a result of the Baddeley judgment and we feel those doubts should be removed.
Would the hon. and learned Gentleman deal with that last point a little further? He said that a drinking club might become charitable if we carried this Amendment. If his argument has any validity any drinking club which wishes to become charitable merely has to introduce women members.
If I misled the Committee, I apologise, but I do not think I did. I used the word "might". There are various other tests which would have to be applied and the whole thing would have to be fitted into the law of charity. What I was trying to get at was that we do not wish to bring drinking clubs within the law of charity.
My hon. and learned Friend has supported the Bill as it stands on the ground that it has not introduced any new principles. He said that the principle embodied in this paragraph is that applied by the Commissioners of Inland Revenue for a long time past. Does he know of any case in which the Commissioners of Inland Revenue have refused to allow as a charity any trust on the ground that it was limited to members of the male sex? That is the sole question at issue.
What the paragraph does is to say that it may be a charity if it gives its benefits to all mankind—by mankind I mean humankind—it may be a charity if it gives its benefits to women, but it cannot be a charity if it gives its benefits to all men. That seems to be a principle which is quite unacceptable. It may be that it has very little importance in this context, but I think we should look very critically at a principle of this kind before embodying it in a statute.
The point is easily answered by pointing out that in subsection (2, b, i) it will be found that it is possible for clubs or institutes which
are confined to men to be regarded as recreational charities if the facilities are provided by reason of the
youth, age, infirmity or disablement, poverty or social and economic circumstances
of the men concerned.
If that is the case, subsection (2) is quite unnecessary. What my hon. and learned Friend has said is equally applicable to women, but women are expressly brought in.
Surely my hon. and learned Friend has been showing the whole weakness of the case the Government are putting forward, because it appears to equate womanhood with other disabilities, such as poverty or infirmity. That is the only point of singling out womanhood from manhood. It may be that in the past, when womanhood was a disability, it was the practice of the Inland Revenue authorities to treat trusts exclusively for the benefit of women as valid charitable trusts because women were in such a parlous state, but surely today it is a monstrous reflection on women virtually to put them in the same category as the poor, the old, the infirm, and the disabled.
We ought to keep this discussion going until an hon. Lady comes into our deliberations, so that we can see whether the ladies really desire this slur put upon them, for such it can only be. If it is charitable to do something for women when it is not charitable to do something for men, that must of necessity mean that women are still considered so weak, or in need of care and protection, that special arrangements must be made for them which, in exactly the same circumstances, do not need to be made for men. Is that a thing to do in the middle of the twentieth century without hearing one woman protest?
I hope that we may make a little progress on this matter, because it has been well discussed both in this House and in another place. The point is simply that Women's Institutes have been regarded as charitable, and were regarded as charitable before the Baddeley decision. That has thrown considerable doubt on their position. Everyone enjoys the sort of speech made by my hon. Friend the Member for Darwen (Mr. Fletcher-Cooke), but at the end of the day it conies down to this: are we to make special provision in a Bill of this character to put Women's Institutes into a secure position? I think that everyone in this Committee would say, "Yes." That is why we have to have this specific reference to, "female members of the public."
The point has been made, "Why is there this specific reference and no provision also made for facilities for male members of the public?" The answer is that if there had been an institute for men comparable with the Women's Institutes we would certainly have to do so, but exhaustive inquiry has not revealed any comparable institution. Therefore, in the process of correcting the effects of the Baddeley decision, there is no need to legislate in that form. That is all there is about it.
It is not necessary, I suggest to my hon. Friends with the greatest respect, to get at all heated about this, or to prolong the discussion, unless it means that they want—as I am sure they do not—the position of Women's Institutes to remain in doubt. But for that kind of institution there would have been no need to make any specific reference to "female members of the public," but that has created a need.
What is extremely difficult to follow on this side is the suggestion that if we let in male members we allow a male drinking club, but that if we let in female members we do not let in a female drinking club. Surely, however, there are other tests that would be satisfied by neither the male nor the female club, as the hon. Member for Itchen (Dr. King) rightly pointed out in his intervention.
Nobody on this side of the Chamber, nor, I suppose, on the other, wishes to prejudice the position of Women's Institutes, but it will not, however, escape attention that a specific reference to Women's Institutes is made in the next subsection. On Second Reading, we discussed how far it was desirable to attempt to lay down a general principle or, alternatively, to enumerate the charities that would be regarded as satisfying the test of social welfare. On balance, I think that it must be right to abide by the general principle, but we have made an exception in the case of miners' welfare charities and have, in effect, in subsection (3) made an exception in the case of Women's Institutes.
Here, it might be convenient, and would save time, to refer to the Amendment in page 2, line 8, to leave out "subject to the said requirement" and to insert:
without prejudice to the generality of the foregoing provisions".
Acceptance of that Amendment would mean that we are not tying the Women's Institutes to any requirement in Clause 2, and we might get round their position in that way. We are not anxious to hold up this Bill which is, in principle, an excellent one, but it is important that such a novel principle as this should not be introduced. My right hon. and learned Friend said that he had never heard of a male organisation to which this would apply, but I have tentatively thrown out the possibility of a male nurses' organisation which might well satisfy the same tests as an organisation of female nurses, or Women's Institutes.
With all respect, I do not think that the Attorney-General has answered the very serious point put to him by his right hon. and learned predecessor the Member for Chertsey (Sir L. Heald). This Bill does legislate on a principle. The Attorney-General is worried about preserving the position of Women's Institutes. They are specifically mentioned in the next subsection to be discussed, and the purpose of this subsection (2) is to do two things.
First, it is to secure that the provisions are made for the public at large. That is common ground, and has the support of every member of the Committee. But then it goes on to say that those provisions must be either for men and women or for women. If it is for men only, they are excluded from the provision. That seems to be quite a serious matter. I am a feminist. I have spent quite a lot of my life advocating equality for the female sex. This question seems to be one of advocating equality for the male sex, and I hope that we will stick at it.
I want to add my protest against this monstrous regiment of women. I really do not understand this provision. I have had only a short time to consider all its implications, and I quite understand that those responsible have looked round and have found only the Women's Institutes. It is sometimes suggested that in these matters the best way is to leave it to an Order in Council to pick out particular institutions, and that another way is to put it in a Schedule. It has been pointed out, however, that there is always the danger of missing someone out, which is rather unfair, so I think that we would do better to make it a general expression.
In this Clause we have reference to three forms of institution, but to no others. We are told that those three are in because they have been ratified, and we are assured that there are not any others. I am sure that that assurance is made in good faith, but I do not like picking out just certain institutions. We are told that we must not go any further in altering the law, but if we are altering the law, we are altering the law.
I am not satisfied that the Baddeley decision said that Women's Institutes were not charities. I think that it decided that if an omnibus clause is used, too large a number is let in, but I do not think that it mentioned Women's Institutes at all. If this is done once, and we have a sudden segregation of sexes, who knows what further little nibbles we will be taking at the law of charity?
I beg to move, in page 2, line 7, at the end to insert:
or of some appreciably important section of the community".
I do not want to delay the Committee, but I feel that it is our duty to consider this matter very carefully. It has already been pointed out that there has not been any legislation in connection with charities for many years, and that we are still dependent on an Act of Parliament in the reign of Queen Elizabeth I and on one famous House of Lords' decision in the last century.
I would have thought that if we were to bring in any legislation on the subject it should be very carefully considered, and should be comprehensive. It is quite a mistake to suppose that the legislation to which we are now asked to agree really deals with the Baddeley case. That should be quite clearly understood. I have to make a very respectful protest against the way in which the whole matter has been introduced.
By way of preface, I say that I do not consider that the fact that someone on this side criticises the Government shows any kind of weakness, or anything of the kind. That is not the way in which we approach things, or, at any rate, it is not the way in which I approach things. We should not have that consideration in mind at all. This is not a party matter. Nevertheless, it is a very important matter indeed. I want it to be quite clearly understood that I very much welcome the Bill in so far as it preserves the position of certain very important charities jeopardised by the Baddeley case.
I want to read what my noble Friend the Lord Chancellor stated to be the background of the Bill when it was introduced in another place:
There has been little precedent for legislation of this kind for many years, and the Government have felt the need for great caution in venturing upon an untried field. They have exercised great care to avoid"—
and these are the important words—
even even an appearance of encroachment on the traditional functions of the courts …"—[OFFICIAL REPORT, House of Lords, 21st January, 1958; Vol. 207, c. 17.]
With the greatest possible respect to my noble Friend, I suggest that that is not the proper way to consider legislation. The House of Lords made a decision. No one suggests that it acted wrongly. It decided in accordance with what it believed to be the laws and statutes. The Government have come to the conclusion that that decision should be altered. We should not be afraid of that. Nobody in the House of Lords will feel insulted. The Law Lords will not feel that we are criticising them for altering the law. I like to think that they are rather bigger men than that. They may say, privately, what they think of us either in that or in some other respect, but that does not mean that they feel any resentment, and I very respectfully protest against that method of dealing with the matter.
The question is: is the Baddeley decision considered objectionable and wrong; ought it to be corrected, and should the Committee correct it? Two points in the Baddeley decision are involved. One is dealt with in the Bill, but the other is not dealt with at all, and the leaving open of the second one will, in my respectful opinion and that of many other people, lead to another Baddeley case if we do not do anything about it.
The first point, as the Committee very well knows, was whether the recreational purposes were sufficient to justify charity. The answer was that they were not. The second point was quite a different one. It was whether the class of persons to whom the charity was restricted was an appropriate one. That was left completely in the air by the House of Lords. One of their Lordships decided that it was, one decided that it was not, two were undecided, and the the fifth gave no opinion at all. So there is a perfectly open goal, if I may so put it, and the House of Lords may well have another case to consider.
I must read what Lord Justice Jenkins said in the Court of Appeal. Having decided the first point about the recreational side—it is agreed that we are now supporting Lord Justice Jenkins on that—he said:
It remains to consider the question of public benefit. Are persons resident in the county boroughs of West Ham and Leyton who are, in the opinion of the leaders referred to, members or likely to become members of the Methodist Church a sufficient section of the public for the purpose of a charitable trust? Speaking for myself, I have no doubt that they are.
There was an appeal to the House of Lords, where it was "one all", with two noble Lords refusing to give an opinion and a fourth being completely silent.
What is the position now, if another case arises after this Bill, the same kind of case, in spite of the fact that we know it is the law at present and is said to be the law that a section of the community may, in certain circumstances, be charitable? Lord Justice Jenkins was quite clear. In the House of Lords, Lord Simonds took a view completely contrary to Lord Justice Jenkins, but Lord Reid agreed with him.
If I may respectfully say so, from the way in which this Amendment has been dealt with, it does not appear likely that very much attention will be paid to anything that is said. But it should be said, because it is a matter of public importance. My Amendment adds words after
the public at large.
As the Clause stands, the danger is that the argument may be put up that it must be for the public at large and cannot be for a section. We suggest that there should be added to that,
or of some appreciably important section of the community.
I hope that it will not be said that that is a woolly expression. I should warn anyone who is thinking of saying that that it comes from a very eminent Law Lord, Lord Wrenbury. It has since been approved of by Lord Simonds, formerly Lord Chancellor, and by Lord Reid. I should have thought that it was almost more Woolsack than wool. That expression has been used to make it clear that it is not necessary to have the public at large benefited by the trust.
Lord Simonds has said that a geographical section of the community is enough, but he went on to say that a geographical section limited to Methodists is not enough. Lord Reid, on the other hand—a very eminent judge whom some Members of the House will remember, in rather different circumstances, when he was Lord Advocate—took the view that the limitation to Methodists was perfectly proper.
We are being asked to amend or to clarify the law, and that point has been left open. There are a large number of charities who are uncertain what their position will be. Frankly, the Government have not so far had the courage to deal with this matter. They have said, "Let the courts decide these cases". I suggest that we would not be performing our duty if we were to let the courts decide. We ought to do something to make the position clear.
I am interested in one organisation which is very much concerned in this Bill, although it is confined to boys and, therefore, apparently, from what we have heard, ought not to be regarded as a charity at all. I am sure that there are a number of people who are concerned. They do not know, if this Bill goes through as it stands, whether they will not find themselves in this position, that somebody in a Government Department at a date in the near or distant future will say, "They have not altered the other part of the Baddeley case. So let us challenge this Bill not on the recreational point, but on the other point".
Can anyone say with certainty what will be the result? I sincerely hope that Lord Justice Jenkins' statement will be upheld. I may have a personal interest, because I was engaged in that case. It was interesting in that the Attorney-General was not appearing on behalf of the Inland Revenue, but against it on behalf of Her Majesty the Queen as Guardian of Charities. Therefore, I may be prejudiced in saying that I think Lord Justice Jenkins gave a very wise decision.
At present, if a member of the Bar is asked to advise what the result will be in the House of Lords when there is a judgment of Lord Simonds one way and a judgment of Lord Reid the other and three uncertain starters, if I may so put it, he will say, "I cannot tell you what the result will be." Is it a satisfactory state of affairs that Parliament should leave this question undecided?
It may be that we shall be told that it was not possible to draft appropriate words. Is that really so? I have had experience of parliamentary draftsmen and I have never known a case where, if they had wanted to, or if somebody, with a large "S", wanted them to, they have not found a way of dealing with it. I would like to know whether they have tried, and, even if they have, may we suggest that they try again before the Report stage?
I am sorry that my right hon. and learned Friend the Member for Chertsey (Sir L. Heald) should be under the mistaken impression that not very much attention is being paid to what is being said tonight. The Joint Under-Secretary and myself have listened to every word and paid full and due attention to all that has been said.
May I say this, in reply to what he has said on this Amendment. I have already dealt fully with the points that he has raised. He is quite wrong in suggesting that this point, which was not decided in the Baddeley case, was a point which arose for the first time in the Baddeley case. It was nothing of the sort. There has always been difficulty about the size of the class and that difficulty remains.
My right hon. and learned Friend posed the question: is it satisfactory that the law should be left in this state? That question can be put with regard to many aspects of the law relating to charity, and the answer would always be the same. I am not particularly impressed by the posing of that kind of question. As I sought to show on Second Reading, and today, all we are seeking to do here is to correct the consequences of the Baddeley decision on other charities on the point which came up and was decided, rather to some people's surprise, in that case.
I cannot advise the Committee to accept the Amendment tabled by my right hon. and learned Friend in an endeavour to solve that particular problem. The effect of it would be to bring within the scope of the Bill recreational facilities for Members of Parliament, town councillors, medical practitioners, and indeed, any class of any size or significance. That would be an extension of the law of charity.
I ask my right hon. and learned Friend to consider what has already been said about this Measure and to excuse me if I do not reply to him at greater length. I gather that there is an arrangement about other business being taken fairly soon. I hope I can remain in order by asking my hon. Friends to consider not moving the further Amendments on the Notice Paper. If the Committee accepts the Government Amendment on the Notice Paper, there is bound to be a Report stage, in which case the Amendments still remaining for discussion could be tabled and, no doubt, discussed on that occasion. I hope in those circumstances that my right hon. and learned Friend will appreciate why I do not reply to him at greater length.
In view of what my right hon. and learned Friend has said, I am very glad to assist, but I should like to ask that, in the interval which is to be provided, opportunity will be taken to give this matter further consideration, it being possible that my right hon. and learned Friend might feel that he may even have received some new ideas on the subject. In the circumstances, however, I beg to ask leave to withdraw the Amendment.