Clause 8

Charities Bill [Lords] – in a Public Bill Committee at 1:45 pm on 6 July 2006.

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The Charity Tribunal

Photo of Martin Horwood Martin Horwood Shadow Minister (Environment, Food and Rural Affairs)

I beg to move amendment No. 85, in page 8, line 16, leave out second ‘of’ and insert

‘made or not made by’.

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to discuss the following amendments: No. 86, page 8, line 17, at end insert—

‘(ab) such appeals and applications as may be made in relation to any decision or activity consequent to any decisions, orders or directions of the Commission, and’.

No. 69, page 8, line 20, at end insert—

‘(c) such appeals and applications as may be made to the Tribunal, in respect of decisions, orders or direction not made by the Commission which could reasonably have been made by the Commission.’.

No. 87, page 8, line 20, at end insert—

‘(d) any appeal or application as may be made to the Tribunal relating to any decision made by the Secretary of State under this Act.’.

No. 19, in schedule 4, page 91, line 13, leave out from ‘matter’ to end of line 29 and insert—

‘as set out in paragraph 3, an appeal may be brought to the Tribunal against any decision, direction or order made or given by the Commission under this Act (including any decision not to give a direction, make an order or otherwise act under this Act).

(2) Such an appeal may be brought by—

(a) the Attorney General;

(b) any person from the following—

(i) the persons who are or claim to be the charity trustees of the institution or who otherwise have control or management of the institution,

(ii) (if a body corporate) the institution itself, and

(iii) any other person who is or may be affected by the decision, direction or order (as the case may be).

(3) In determining such an appeal the Tribunal—

(a) shall consider afresh the decision, direction or order appealed against, and

(b) may taken into account evidence which was not available to the Commission.

(4) The Tribunal may—

(a) dismiss the appeal; or

(b) if it allows the appeal, exercise any of the following powers—

(i) quash the decision, direction or order (as the case may be) in whole or in part, and (if appropriate) remit the matter to the Commission,

(ii) substitute for all or part of the decision, direction or order (as the case may be) such other decision, direction or order as could have been made or given by the Commission,

(iii) give such direction to the Commission as it shall consider appropriate,

(iv) substitute for all or part of any direction or order any other direction or order which could have been made by the Commission, and

(v) add to the decision, direction, or order (as the case may be) anything which could have been contained in the original decision, direction or order.’.

Before we proceed, I have another little note on procedure. If the hon. Gentleman wishes to move any other amendments than the lead one, he will need to give me advance notice so that I would be able to say no courteously. If the hon. Gentleman leading for the Opposition had wished to move amendment No. 19, he, in turn, would need to give notice, but it would not be called now. It would be called formally when the schedule to the Bill to which it refers is reached much later in the proceedings. He would still need to give notice to the Chair of his intention now. I hope that is clear. We will now discuss amendment No. 85.

Photo of Martin Horwood Martin Horwood Shadow Minister (Environment, Food and Rural Affairs) 2:00, 6 July 2006

I am extremely grateful to you,Mr. Gale, not least for the instructive and tolerant way in which you are guiding us through this minefield. You are obviously acting in an advisory, rather than a regulatory, capacity in that.

My proposed amendment No. 85 is designed to raise a matter that I raised on Second Reading. That is about the ability of decisions effectively not made by the commission to be referred to a body, such as the tribunal, as well as those decisions that are made. As a general principle, it addresses the question of whether or not commission inaction, as well as commission action, may have consequences.

The case that I raised on Second Reading was that of an Alzheimer’s organisation or an organisation that purported to support Alzheimer’s research, which was called the Alzheimer’s Foundation. Appropriate and speedy action was taken by the advertising standards authority and by journalists in investigating and bringing to public attention the undesirable activities of that organisation.

Unfortunately, the one body that did not see fit to act until political pressure was brought on it, was the Charity Commission. That would have been an occasion when, instead of troubling Ministers with the matter or having to raise it through the media, it would have been worthwhile, appropriate and convenient for the Alzheimer’s Society—which was the legitimate and worthwhile charity that was threatened by the activities of that organisation—to have immediately referred the commission’s decision not to act to the tribunal.

From my reading of the schedule that sets out the various circumstances in which decisions and, in some cases, decisions not to act can be referred to the tribunal, it would not have been possible to do that under the Bill. I hope that we will see our way to include that in the Bill.

Amendment No.86 is different. It addresses many of the matters raised in the Association for Charities’ document “Power without Accountability”. The amendment refers not only to decisions made but to

“any decision or activity consequent to any decisions, orders or directions of the Commission”

Photo of Peter Bottomley Peter Bottomley Conservative, Worthing West

Just for clarity, we were looking at the reference to schedule 1D. Is that what appears on page 102 as part of schedule 4? If it is not, I am looking in the wrong place. I think that it is, but it would be useful if that could be confirmed.

Photo of Martin Horwood Martin Horwood Shadow Minister (Environment, Food and Rural Affairs)

That is a good question. I am beginning to sympathise with the Minister about being asked intelligent questions by the hon. Member for Worthing, West. Schedule 1D gives the detailed table of decisions which can be referred to the tribunal. Later on, I am proposing amendments Nos. 81 and 82 to that very schedule in order to produce new possibilities for referring specific decisions or activities to the tribunal.

What I was seeking to do in those amendments to clause 8 was to confer a general responsibility and possibility on complainants to be able to refer decisions not made or activities consequent to decisions made to the tribunal as a general rule without having to be dependent on finding them in schedule 4.

Photo of Ed Miliband Ed Miliband Parliamentary Secretary (Cabinet Office)

I hesitate to try and help the hon. Member for Worthing, West as I might get this wrong, but I think that the relevant provision is in section 1C. The long table that we will be talking about later starts on page 94. Column 1 is essentially a list of all the different commission decisions that can be referred to the tribunal. If the hon. Gentleman is looking for a list of decisions that can be taken to the tribunal, he should look at the table.

Photo of Martin Horwood Martin Horwood Shadow Minister (Environment, Food and Rural Affairs)

I am particularly grateful to the Minister for that intervention, which is exactly right.

I was discussing how it might work in practice. We will consider amendments Nos. 81 and 82 later, but I shall refer to them briefly, because they explain how it might work and how what appears to be a broad, sweeping permission to bring cases to the tribunal will actually be a very practical one—for instance, a decision to continue with the appointment of a receiver and manager on the basis that the activities of the current receiver and manager consequent on the decision to appoint another might be brought before the charity tribunal. The displaced trustees of the charity in question might feel that the receiver and manager was running up excessive costs or was not administering the charity in the best interests of its stakeholders. I cannot see in the table in schedule 4 the decision to appoint that receiver and manager in the first place. That is an example of how a general amendment might enable people to bring appropriate complaints before the tribunal.

The issues are serious for the charities concerned; they are not legal minutiae. One case in the booklet issued by the Association for Charities particularly alarmed me and illustrated the need for such amendments. PALS, or the Protection of Animal Life Society, was a small animal welfare charity established near Salisbury in 1984. It grew during 15 years to become a significant local charity, but it did something that in an ideal world it would have been advised not to; it based the charitable premises on the founder’s private land.

That attracted the interest of the Charity Commission, and a process was set in train. As far as I can tell from this document—I understand that its factual accuracy has not been significantly challenged by the commission or anyone else—no serious breach of charity law was ever found. Nevertheless, a process was instigated that led to the removal of the founder as a trustee, the freezing of the charity’s bank account and  ultimately the winding up of PALS as an independent charity. The consequences were extremely serious for the charity concerned. It happened despite a petition from 1,000 local supporters of the charity and the involvement of the local MP.

The Association for Charities’ conclusion is pretty strongly worded:

“it is clear that the Commission found no substantial breaches or any intent to breach charity law or regulation. The fact is that charity law as interpreted by the Commission is so complex there can hardly be a charity in the land which does not occasionally commit minor technical breaches. The Commission could not find even a half decent excuse to destroy this charity. But it sacked the key person at the centre of PALS’ success, ‘supervised’ the appointment of incompetent replacement trustees who destroyed it, and then connived in disposing of the remnants to a big charity.”

The wording is extremely strong, and I am sure that the commission and its representatives might contest it. One might think that it is an over-excited response to an administrative issue.

On the other hand, the founder of the charity was represented by Bates, Wells and Braithwaite, which in my view is the country’s leading charity law firm. It includes such eminent and learned Friends as Lord Phillips of Sudbury. The firm wrote to the Charity Commission in September 1998 to say that the PALS case had been handled in a way that it considered

“to have been profoundly unsatisfactory.”

A few days later it wrote to the hon. Member for New Forest, West (Mr. Swayne), saying:

“Under the Charities Act 1993, the Charity Commission had an extraordinary latitude and draconian powers which...are not checked or qualified by any prescribed due procedure or meaningful accountability. This has led to heavy-handedness, unfairness and serious miscalculation on the part of the Commission in this case...We very definitely think it is a case which may be used to illustrate the need to ensure that the Commission is statutorily obliged to act in accordance with the general principles of fairness and natural justice in accordance with a prescribed and open procedure and that there is an effective, independent and affordable appeal procedure.”

In some ways, the Bill already takes account of that matter. The establishment of the charity tribunal is a welcome step. It is one of the ways that it seeks to address the general rule of having some kind of transparent court of appeal against charity commission decisions. It is one of the reasons that we support the Bill in general. Nevertheless, that particular case would not have been easy to refer to the tribunal, unless the Bill is amended in the way that I suggest. The sense of injustice that permeates that report—and which is present in some smaller charities, some of which have been subject to Charity Commission decisions and their consequences—is something that it is in the commission’s interests to address.

If the commission were to have a proper process which resulted in consequences or the actions being challenged and gives the commission the opportunity to justify them in some way—what Bates, Wellsand Braithwaite called a “prescribed and open procedure”—that would enable them to avoid ever having to be presented with a document like this ever again. They would have that open and prescribed procedure and would be able to justify and hopefully be almost acquitted by the tribunal, if they were acting  in the right. I am therefore keen to promote amendment No.86 for that reason.

Amendment No. 69 repeats the principle of amendment No. 85. Therefore, I will not spend a great deal of time on it. However, the significant phrase within it is:

“decisions, orders or directions not made by the Commission which could reasonably have been made by the Commission.”

Amendment No. 87 closes what might be a loophole. I would be interested to hear the Minister’s views on that. There are large numbers of provisions in the Bill which address, or give the right of appeal against, Charity Commission decisions. However, the commission is not the only body corporate that can act under the Bill. The Secretary of State himself has powers, some of which are by order and regulation and which could presumably be challenged in this place and elsewhere. There are some powers, for example, the decision to appoint, set remuneration for and even sack, a member of the Charity Commission itself.

I cannot see anywhere in the Bill—but perhaps the Minister may enlighten me if I am wrong—where that type of decision could be challenged on any of the bases that we have discussed in the debate so far. It would be good if the Secretary of State’s decisions were also subject to the Bill’s appeal procedure and the processes of the charity tribunal. I beg leave to move the amendment in my name.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

I strongly support the thrust of the amendments tabled by the hon. Member for Cheltenham. That is why I have tabled amendmentNo. 19, which seeks to achieve the same thing by a different route and which I give notice that I wish to move at whatever time is appropriate.

I was appalled to read the Association for Charities’ report. I cannot believe that a public body has behaved in such an irresponsible way. One that is so open to criticism and appears to adopt the most reprehensible tactics in dealing with members of the public and members who are trying to do their best—a very small group of people.

To my knowledge, and as the hon. Member for Cheltenham said, none of the report has been substantially challenged by either the Charity Commission or the Home Office. I am amazed that such behaviour has been tolerated in a public body. The hon. Gentleman quoted the letter to my hon. Friend the Member for New Forest, West. It bears repeating that the letter was not written by the Association for Charities, nor by an irritated trustee and nor by someone who went into the marketplace in Salisbury, gave money and then found that the money was being wasted by the appointees of the Charity Commission. The letter was written by a reputable firm of charity lawyers who described the commission as having extraordinary latitude and draconian powers, as having behaved with heavy handedness and unfairness, and as having made serious miscalculations.

The commission appointed trustees for the charity who came and went on an almost monthly basis. It then handed over what remained of the charity’s assets to another charity that did not appear to have identical objectives—the National Canine Defence League. That is a perfectly reputable charity that focuses on the needs of dogs, but PALS focused on the needs of a far wider range of animals. The commission tried to bully Lorraine Drake, using what seems the absolutely perverse excuse that the buildings of the charity, which were mobile buildings, were on her land. It bullied her into entering into a lease with the charity for that land—a move for which there was no legal justification.

I accept that the tribunal may have been set up as a result of such a case. However, I believe that the hon. Member for Cheltenham is absolutely right in saying that there should be a general mechanism of appeal, because the alternative is to go to the High Court—an option that the tribunal is meant to prevent. The tribunal was established because charities cannot afford to go to the High Court; charities that spend money going to the High Court are spending money that could be better spent on animals, young people, or the elderly and vulnerable, or the other beneficiaries of the charity. I strongly believe that any decision or non-decision of the charity should be appealable to the tribunal. That is why I tabled amendment No. 19.

Photo of Peter Bottomley Peter Bottomley Conservative, Worthing West 2:15, 6 July 2006

Just for the record, I am not going to take part in this part of the debate because my brother-in-law works for Bates, Wells and Braithwaite.

Photo of Ed Miliband Ed Miliband Parliamentary Secretary (Cabinet Office)

Phew. I thought that I was going to get a difficult question to which I would not know the answer. I got away with it this time.

On the Association for Charities report, I do not want to enter into the details of the case that has been mentioned. However, to set some context for the Committee, it is worth pointing out that the PALS case went to the independent complaints reviewer, which, as I understand it, did not uphold the case made by the Association for Charities. That is not to say that the document does not have its merits. I have not read it, but I shall endeavour to do so, and I am sure that it has merit, but the case is not one of a public body operating without any constraint. Indeed, the case was taken to the ICR, which found in favour of the commission.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

It is of course a fact that the ICR has a contract with the Charity Commission to perform that service. Will the Minister say whether it is still the case, or indeed whether it was ever the case, that that contract involved an upper limit of £5,000 on compensation?

Photo of Ed Miliband Ed Miliband Parliamentary Secretary (Cabinet Office)

It is the hon. Gentleman’s turn to ask me questions to which I do not know the answer. To my knowledge, the contract does not involve that, but I shall endeavour to find out. I think it is unfair to the independent complaints reviewer to suggest that it is influenced by its contract with the Charity Commission to find in favour of the commission, but I can find the answer for the Committee. I suspect that there are many cases in which the independent  complaints reviewer has not found in favour of the commission and it will want to protect its independence and reputation. Although the hon. Gentleman did not intend to do so, I think that he has slightly impugned the reputation of the ICR, which I suspect goes about its job diligently.

I shall deal with the amendments by first informing the Committee of the principles of our approach to the establishment of the charity tribunal. I will set out the context of the amendments and explain why we do not believe that they are sensible while, on first blush, some of them may seem to be making a reasonable case. There are three things worth saying about the new body. First, it is an appellate body in line with the accepted practices of the workings of tribunals, including employment tribunals and those covering the Land Registry. Within the rules and procedures of tribunals that are set out by the Tribunals Service, they operate in an accepted way. They are bodies to which appeal can be made if it were felt that a wrong decision had been made by a public body.

Secondly, the decisions that tribunals consider are always—and not only in the case of the proposed charity tribunal—legal, not administrative. For example, the decision whether an organisation should be charitable and whether the charity commissioners made a correct judgment is a subject for the charity tribunal. However, the slow processing of an application form and whether that was negligent is not. Members of the Committee might wonder whether the charity tribunal will have enough to do. I suggest that they look at column 1 of the table under schedule 4. The table runs to eight pages and, by my count, deals with about 50 different classes of decisions.

A wide range of legal decisions is made by the commission that the tribunal will be entitled to consider, including whether an institution is put on the register of charities, decisions that are made about trustees, inquiries into charities and, indeed— to answer the hon. Member for Cheltenham—the appointment of receiver-managers referred to on page 95 of the Bill at column 1. It is headed:

“Order made by the Commission under section 18(1) of this Act in relation to a charity” and includes decisions made on an interim or receiver-manager basis.

Photo of Martin Horwood Martin Horwood Shadow Minister (Environment, Food and Rural Affairs)

I have two brief questions for the Minister. First, he suggests that only formal legal decisions are subjected to the tribunal’s review. However, page 94 refers to a decision simply “to institute an inquiry”. That does not sound like a legal decision to me. He seems to be putting a more restrictive construction on schedule 4 than I thought was the case.

Secondly, I am aware that the decision to appoint a receiver-manager is referred to under the schedule, but we are dealing with when even the initial decision might have been reasonable. However, the consequences of the actions of the receiver-manager once appointed do not seem to be open to challenge under the Bill, as drafted. If the Parliamentary Secretary were willing to reassure me that he would make sufficient changes to the table at some stage to allow for that, I might be sympathetic.

Photo of Ed Miliband Ed Miliband Parliamentary Secretary (Cabinet Office)

I cannot give the hon. Gentleman reassurance on that point. The commission is operating its legal or quasi-judicial function by making decisions, such as instituting an inquiry, although that is referred to as a legal decision. Indeed, it is covered in the table and considered to be a legal decision. I cannot reassure him about the receiver-manager. He highlighted the distinction that I am trying to draw and that all tribunals follow between a legal decision and a challenge to a legal decision, which is absolutely appropriate, and questions of administration by the Charity Commission or persons that it appoints. That is not a matter for tribunals. Tribunals make a ruling on a legal decision made by a public body. That is not just true in this area; it is true in respect of Her Majesty’s Revenue and Customs, the Land Registry, which I cited, and the land tribunals, which I understand operate in the same way. However, complaints about the practice of administration of the body are for its internal complaints procedures, the independent complaints reviewer, or the parliamentary ombudsman—they are not for the tribunal.

Photo of Martin Horwood Martin Horwood Shadow Minister (Environment, Food and Rural Affairs)

I am grateful to the Parliamentary Secretary. However, I have said that amendments Nos. 81 and 82 give examples of how the activities I am talking about, which he has just mentioned—for example, the decision about whether to continue with the appointment—could be brought before the tribunal in a way that fits with that legal structure.

The schedule deals not just with a decision to do something, but the decision not to do something. That principle is already conceded in the schedule, so I cannot see the problem with extending it expressly to the decision to continue, for instance, with the appointment of a receiver-manager where the issue at hand, if not the legal principle, is the continuing activity being undertaken by that receiver-manager.

Photo of Ed Miliband Ed Miliband Parliamentary Secretary (Cabinet Office)

I am trying to follow the hon. Member for Cheltenham as best I can. Like the hon. Member for Isle of Wight in his amendments, he is crossing the divide between legal decisions made by the Charity Commission that are correctly challengeable in the tribunal and administrative decisions, which are a different type of practice and are not legal decisions in the same way.

The hon. Member for Cheltenham cited an example from the Alzheimer’s Society, relating to a terrible delay in something happening and said that the commission had been negligent. That is not a legal decision that is challengeable in the tribunal. He may have been right about the case he mentioned—I do not know the details—but such a case should properly be taken to the complaints procedure, the ICR and the parliamentary ombudsman. That is not just true in respect of the Charity Commission tribunal, but across the board.

Photo of Martin Horwood Martin Horwood Shadow Minister (Environment, Food and Rural Affairs)

I think that the Parliamentary Secretary is wrong. A delay was not the issue in the case relating to the Alzheimer’s Foundation; the issue was the decision not to institute an inquiry. Decisions to institute an inquiry are dealt with under the schedule, so they must count as legal decisions. The schedule also deals with decisions to do something and not to do something, so the negative also applies in  principle. However, that does not apply in the case that I mentioned. There is no problem of legal principle in including, as is suggested in amendment No. 85, something to allow a decision not to be made, as well as allowing it to be made. That principle is already conceded in detail in the schedule.

I have already tried to explain—perhaps not very well—that the decision does not have to be a judgment on the conduct of the administration. The decision in respect of the case that I have mentioned would be the decision to continue with the appointment, which would be a legal decision by the Charity Commission that may be based on evidence from the ongoing activities. The legal decision that the Parliamentary Secretary seeks would be the one under consideration. Perhaps he will clarify whether the decision to appoint or not to appoint is a legal decision.

Photo of Ed Miliband Ed Miliband Parliamentary Secretary (Cabinet Office)

I will consider the hon. Gentleman’s point on decisions not to institute an inquiry. However, his amendment has a far broader scope than a specific decision not to institute an inquiry. Amendment No. 69 refers to

“such appeals and applications as may be made to the Tribunal, in respect of decisions, orders or direction not made by the Commission which could reasonably have been made by the Commission”.

That covers a range of administrative decisions that the commission could have made. [Interruption.] The hon. Gentleman says from a sedentary position, “decisions, orders or direction”, but that covers a wide range of possible decisions, orders or directions that the commission could or could not have made. It certainly goes into the sphere of the administrative practice of the commission, which is why we do not accept either that amendment or amendment No. 85.

Photo of Martin Horwood Martin Horwood Shadow Minister (Environment, Food and Rural Affairs) 2:30, 6 July 2006

I refer the Minister to proposed new section 2A(4) of the 1993 Act, which clause 8 will insert. It states:

The Tribunal shall have jurisdiction to hear and determine...such appeals and applications as may be made to the Tribunal in accordance with Schedule 1C to this Act, or any other enactment, in respect of decisions, orders, or directions of the Commission”.

My amendment merely repeats the positive wording of the existing provision.

Photo of Ed Miliband Ed Miliband Parliamentary Secretary (Cabinet Office)

The hon. Gentleman makes an interesting and important point, to which I shall endeavour to return soon.

More generally, amendment No. 85 suffers from the problem that it takes the tribunal into the heart of the administrative, rather than simply the legal, principles of the commission. My point is that a significant delay in the commission’s work is obviously wrong and reprehensible, but not a matter on which the tribunal should adjudicate.

Photo of Martin Horwood Martin Horwood Shadow Minister (Environment, Food and Rural Affairs)

I am extremely grateful to the Minister for giving way yet again, but the word “delay” was his and not mine. The example that I quoted was  one of a decision not to instigate an inquiry, which is simply the negative of legal principles that are already enshrined in the schedule.

Photo of Ed Miliband Ed Miliband Parliamentary Secretary (Cabinet Office)

My understanding of amendment No. 85 is that it would go down precisely that road.

Let me move on to amendment No. 86, which takes us to the implications of a decision, not simply whether it was right or wrong. In our view—this has long been accepted for tribunals—that should not be a matter for the tribunal. The tribunal decides whether a decision was right or wrong; it does not then consider the implications of a decision. I hope that the hon. Gentleman will not press amendment No. 86, at least.

A similar argument applies to amendment No. 87 on decisions made by Ministers, because it would take the tribunal into territory which would, in a sense, be unprecedented. The hon. Gentleman made a point about the appointment of charity commissioners, but I do not believe that it is the intention of Parliament that a ministerial decision to appoint charity commissioners should be taken to the charity tribunal. If Parliament wishes to ensure oversight of Ministers’ decisions, it can do so in many different ways, but that is not a matter for a tribunal that is ruling on the Charity Commission’s decisions, just as a ministerial decision made under the Act that set up the employment tribunal should not be taken to the employment tribunal itself. On that basis, I hope that he will not press the amendment.

Amendment No. 19, which was tabled by the hon. Member for Isle of Wight, presents two problems, the first of which might be an accident, because it would mean that the commission would no longer be the respondent to an appeal. I am sure that that is an oversight in the drafting of the amendment, but its effect would be to omit paragraph 1(3) of new schedule 1C to the 1993 Act, which states:

The Commission shall be the respondent to such an appeal.”

I am sure that the hon. Gentleman did not intend that, because it would mean that the commission would no longer have an obligation to appear and respond in person to an appeal.

The substance of the amendment has the same problem as the amendments tabled by the hon. Member for Cheltenham. It would extend the charity tribunal from its locus of more than 50 classes of decision into all areas, including administrative areas. The Government have explained why that would not be sensible.

We have some sympathy with the notion expressed in another place that the table in schedule 4 looks incredibly complex. When one becomes familiar with it and realises that the challengeable decisions are listed in column 1, it begins to look less complex. The key question is whether the guidance for people who want to go to the charity tribunal will make clear which procedures can and cannot be taken to it. I have made inquiries, and I am satisfied that the commission plans to issue guidance that is more straightforward than what is in the Bill. It is fair to say that in most cases, we would expect people who are considering whether to take a case to the charity tribunal to consult not the original legislation, but the guidance.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

I cannot be sure, but I think that the reason why the amendment would omit sub-paragraph (3) is that the amendment is designed to give the power to request a determination and to give the tribunal the power to make a judgment, on a general point of law where there may be no respondent. Where there is a respondent, clearly it would have to be the commission; otherwise, there would be no point in appealing. To be honest, I cannot remember whether this is a drafting error, but I know that I intended that there should be a power to request the tribunal to make a decision, and therefore effectively to give guidance on what the law is, even in the absence of a decision from the commission.

Photo of Ed Miliband Ed Miliband Parliamentary Secretary (Cabinet Office)

I am not sure that I completely understood that intervention, but that might be more to do with me than with the hon. Gentleman. I take him to mean that he did not intend the omission of sub-paragraph (3) to have the effect of preventing the commission from being a respondent, and I accept that entirely.

I return to amendment No. 69. I said that the first principle that we are applying to the charity tribunal is that it will be an appellate body—it will deal with appeals against decisions. That is the general rule that we are following. Opening an inquiry, which the hon. Gentleman cited in relation to the Alzheimer’s Foundation, is an incredibly serious matter. The other reason why we are concerned about the amendment is that it would essentially substitute the tribunal’s decision for the original executive decision-making power of the commission, so that all decisions not to open inquiries into the 150,000 charities in Britain could be taken—

Martin Horwoodindicated dissent.

Photo of Ed Miliband Ed Miliband Parliamentary Secretary (Cabinet Office)

The hon. Gentleman shakes his head, but that would be the effect of the amendment. It would mean that decisions not to open inquiries—not that many inquiries take place each year; I believe that the number is in the hundreds—would leave the charity tribunal open to challenge from anyone who wanted an inquiry into a particular charity.

Photo of Martin Horwood Martin Horwood Shadow Minister (Environment, Food and Rural Affairs)

I think that the Minister’s later remarks answered my point somewhat. He said that there could be thousands of challenges, but obviously common sense must intrude into the process at some point. The decision not to instigate an inquiry is taken only in response to an appeal to instigate an inquiry. The amendment would not completely open the floodgates. It is only when an inquiry is requested, as the Alzheimer’s Society did in the case of the Alzheimer’s Foundation. I cannot believe that a floodgate would be opened that would lead to an unmanageable work load. As I keep saying, there are plenty of other examples in the schedule of decisions not made being subject to review by the tribunal. I cannot see what is so different about this particular class of decision.

Photo of Ed Miliband Ed Miliband Parliamentary Secretary (Cabinet Office)

The difference is that the decision in question would be one of sufficient gravity that it would call into question the nature of the charity and  the institution. Therefore, there is a danger of the floodgates being opened to all types of complaints against institutions. The amendment is dangerous in the breadth of what it proposes. With that information, I hope that the hon. Gentleman will withdraw his amendment.

Photo of Martin Horwood Martin Horwood Shadow Minister (Environment, Food and Rural Affairs)

I am grateful to the Minister for his comments. I will withdraw the amendment. However, I shall do so in the hope that the Minister, having found himself a little ill at ease in answering some of the questions that were put to him, will consider examining the schedule and making appropriate amendments in due course under the powers that are conferred in the Bill to address these serious issues.

The general principles that he has stated do not hold water. If other decisions are in the schedule, both being and not being made and in both cases being open to challenge, and if such a serious matter—the phrase he used was “of sufficient gravity”—as the decision to instigate an inquiry can be included in the positive, I cannot understand why it, like those other decisions, cannot be included in the negative as well. That seems a perfectly logical and reasonable thing to do.

I do not think that the other amendments in the group, which have not been moved and therefore cannot be withdrawn—I am learning Mr. Gale—take us into the field of administration. There is nothing to suggest that in the amendments. They allow a particular class of decision—to appoint a receiver manager—to be revisited and reopened. That does not mean that the administration has to be reviewed as a matter of legal principle. It simply allows the decision to continue with the appointment of receiver manager to be challenged. That seems a reasonable and legally justifiable step to take. With that expectation and hope, I withdraw the amendment in my name.

Amendment, by leave, withdrawn.

Photo of Roger Gale Roger Gale Conservative, North Thanet

Before I proceed, the hon. Gentleman said that at the appropriate time, he wants to move amendment No. 19. Having heard the Minister, is that still his view?

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

It is.

I beg to move amendment No. 14, in clause 8, page 9, line 17, at end insert ‘and compensation.’.

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to discuss the following amendments: No. 78, in clause 8, page 9, line 22, leave out subsection (5).

No. 15, in clause 8, page 9, line 28, at end insert ‘and in doing so shall have regard to the need for the charity to continue to meet its objectives.’.

No. 83, in clause 8, page 9, line 33, at end insert ‘or the decision, direction or order of the Commission which is the subject of such proceedings.’.

No. 16, in clause 8, page 9, line 33, at end insert—

‘(7A) The Tribunal may award compensation to any party to proceedings before it.’.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

I referred to amendments Nos. 15 and 16 in our discussion on amendment No. 12. The Joint Committee, chaired by the right hon. Member for Darlington, recommended that the tribunal should have power to award compensation and/or costs against the Charity Commission. The Bill only provides for the award of costs. The Joint Committee’s recommendation was supported by, for example, the Association for Charities, which pointed out the substantial costs that could accrue to charities as a result of incorrect legal decisions. We have already heard about maladministration.

Amendment No. 15 takes us into slightly different territory: the possibility of costs being awarded against charities. Proposed new section 2B(6) of the 1993 Act in clause 8 says:

“If the Tribunal considers that any party to proceedings before it has acted vexatiously, frivolously or unreasonably, the Tribunal may order that party to pay to any other party to the proceedings the whole or part of the costs incurred by that other party in connection with the proceedings.”

Although I do not intend to encourage anyone to appeal to the tribunal vexatiously, frivolously or unreasonably, each of those things is a matter of judgment—particularly “unreasonably”. As far as I can see, there are only three parties on the side of a charity that could meet an award of costs.

First, that could mean an insurance company with which the charity has an insurance arrangement, although it is difficult to get insurance against behaving vexatiously. Secondly, such a party could be trustees of the charity. We do not want to make people fear that their trusteeship should lead to them losing their house, or something of that kind, perhaps because of a decision, for which they had a distant responsibility, taken on the recommendation of well-paid or, more likely, not very well-paid officials. Thirdly, the charity could bear responsibility for paying such costs. The costs may not be substantial, but there is no bar to representation before the tribunal. In many cases, there is an unbalanced relationship between the appellant and the respondent in such a tribunal, because the charity only has its money and the Charity Commission has lots of public money and may have retained solicitors and possibly even barristers to represent it and may be seeking those costs. There is a danger that such a decision may either bankrupt or reduce substantially the asset base of the charity.

I do not want to encourage people to behave vexatiously or frivolously, but what is unreasonable to one person is often reasonable to another. I do not know whether we are talking about Wednesbury unreasonableness or pure common or garden unreasonableness, with which we are all confronted from time to time in life, but I should not like a charity to be run out of town as a result of a decision taken by the tribunal because the tribunal did not have the responsibility, as this amendment proposes, to have regard to the need of the charity to continue to meet its objectives and, by implication, to retain a reasonable proportion of its assets.

Photo of Martin Horwood Martin Horwood Shadow Minister (Environment, Food and Rural Affairs) 2:45, 6 July 2006

I sympathise with much of what the hon. Member for Isle of Wight said. I am  impressed by the new concept of common or garden reasonableness. I am not sure how easy it would be to define that in law, but I am sure that Bates, Wells and Braithwaite would charge a healthy fee to find out.

My amendments Nos. 78 and 83 have similar aims to those tabled by the hon. Gentleman, but they would achieve them differently, by omitting Clause 8(5)—

The Tribunal may award costs only in accordance with subsections (6) and (7)”— which restricts the extent to which costs may be awarded. Amendment No. 83 is a consequent amendment to No. 78. Although I should like those to be considered, I am broadly sympathetic to the hon. Gentleman’s amendments and am happy to support them.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

On a point of order. I should have given notice of my intention to speak on amendment No. 15.

Photo of Ed Miliband Ed Miliband Parliamentary Secretary (Cabinet Office)

This is an important matter and an important part of the clause. Amendments Nos. 14 and 16 in a sense go together, because they both concern compensation. The Government believe that the tribunal should be able to award costs against the commission, and that is the position taken in the Bill. The problem, which has been mentioned in relation to earlier amendments, is that although the amendments would widen the scope of the tribunal and give it the remit to consider compensation claims, compensation is not a matter for tribunals. The tribunal makes alegal finding. Compensation is a matter for the independent complaints reviewer, which has the power to recommend a consolatory payment, or for the parliamentary ombudsman, who can recommend any level of redress if the complainant has evidence that he or she has experienced quantifiable financial loss, or inconvenience, or worry.

Although I sympathise with the motivation for the hon. Gentleman’s amendment, the tribunal makes a finding of legal fact and can award costs against either party, depending on how they have acted, in the manner set out in subsections (6) and (7). However, questions of compensation for financial loss and other matters are not questions for the tribunal.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

I am having difficulty working out whether the Minister means a tribunal in the sense of a tribunal as referred to in the Bill, and also whether, when he talks about the way the tribunal system works, he means the tribunal system in the context of the Bill, or tribunals more generally. [Interruption.] He is talking about the Bill. I was going to say that other tribunals, such as employment tribunals, can make compensation payments. If he means tribunals as referred to in the Bill, that is why we are proposing the amendment, because we want to change the system in the Bill, although doubtless the Minister will tell us more about why we should not.

Photo of Ed Miliband Ed Miliband Parliamentary Secretary (Cabinet Office)

My understanding is that, in the case of tribunals dealing with appeals against public bodies, the practice is not for compensation to be awarded by the tribunal but for compensation to go through the independent complaints reviewer and the parliamentary ombudsman.

Photo of Peter Bone Peter Bone Conservative, Wellingborough

If the tribunal rules in one direction and compensation is then awarded by the parliamentary ombudsman, does the parliamentary ombudsman have the power to force that compensation to be paid?

Photo of Ed Miliband Ed Miliband Parliamentary Secretary (Cabinet Office)

The parliamentary ombudsman does not have the power to force compensation to be paid, but the commission will almost always accept the parliamentary ombudsman’s recommendation. If the recommendation were not accepted, there would have to be a report to the Select Committee on Public Administration. Acceptance is not compulsory, but I think that I am right to say that in custom and in practice the commission always accepts the ombudsman’s advice.

Photo of Peter Bone Peter Bone Conservative, Wellingborough

But the only way in which we could guarantee payment of compensation would be by allowing the tribunal to award it. We have seen cases in which the parliamentary ombudsman has said that the Government have to do something about pensions and the Government have totally rejected that recommendation. The only way to ensure that compensation will be paid would be to provide for that in the Bill.

Photo of Ed Miliband Ed Miliband Parliamentary Secretary (Cabinet Office)

I take the hon. Gentleman’s point. Nevertheless, we have an assurance that the commission follows the recommendations of the independent complaints reviewer—that is its record, and follows the advice of the parliamentary ombudsman. That is how the system works for public bodies, and it is a perfectly reasonable way forward.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

The Parliamentary Secretary seems to be falling into the trap of confusing the exact two issues that he complained were being confused by the hon. Member for Cheltenham and me earlier. I am talking about, on the one hand, the administrative issues, which go before the independent complaints reviewer and the ombudsman, and on the other, the legal issues, which go before the tribunal.

I accept that legal issues can go to the independent complaints reviewer, but it seems absurd that, having gone to all the trouble of getting a tribunal decision, someone would have to go to someone else, to start, presumably, with a blank sheet. I accept that that blank sheet would contain the decision, but the compensation would then have to be assessed. That seems to build an unnecessary hoop into the system.

Photo of Ed Miliband Ed Miliband Parliamentary Secretary (Cabinet Office)

I am not sure about a hoop. The parliamentary ombudsman and the independent complaints reviewer have experience in such matters of financial loss, in working out the effect of any maladministration and in making a judgement. If we were to do this, we would give the tribunal a new set of responsibilities as regards quantifying the extent of financial loss and so on. I do not accept that there is a new hoop; it is either an additional responsibility for the tribunal or it builds on existing responsibilities for the ombudsman and the independent complaints reviewer.

I move on to amendment No. 78, which was tabled by the hon. Member for Cheltenham. It would widen  the powers of the tribunal—not, on this occasion, to provide compensation, but to provide costs. As I understand it, its effect would be to do so in all circumstances, not only those in which either party had acted unreasonably, vexatiously or frivolously. Again, we can be sympathetic to the intentions behind the hon. Gentleman’s amendment, because we do not want a Goliath Charity Commission against a David complainant.

However, I caution the Committee against turning things into a lawyer’s paradise. Some would say that about employment tribunals, although I could not possibly comment. We want the process to be a simple and straightforward one, in which people can go to tribunals, get easy means of redress and represent themselves. We do not want to create lots of business for Bates, Wells and Braithwaite and other firms, worthy though the individuals working for them may be.

There is a danger that in giving such a broad allowance for costs, essentially the same as that of any court of law, we would open up the process—on both sides, to be fair—to large legal costs. The point applies equally to the Charity Commission. At the moment, the commission will have to pay its own costs unless it can show that the other side has acted frivolously, unreasonably or vexatiously. If we accepted the hon. Gentleman’s amendment, the Charity Commission could run up big legal costs, if it was confident of victory, and charge them to the other side. That might also cause dangers and threats to the charities concerned.

I understand the sentiment behind the amendment, and it is important that as we scrutinise how the tribunal works in practice, we ensure that it has proper means of redress. The overall principle is supported on both sides: going to the High Court as the only route of redress against the commission is not sufficient. There needs to be an easy means of redress. Let us not try to turn the tribunal into another version of the High Court. That is my fear about the amendment and, on that basis, I hope that the hon. Gentleman will not press it to a Division.

That takes me to amendment No. 15. It is a reasonable proposition of the hon. Member for Isle of Wight, but I fear that there is a danger. It is qualifying the awarding of costs in cases when a charity is considered to have acted vexatiously and unreasonably. I understand the hon. Gentleman’s motivation. He does not want lots of worthy charities facing huge costs as a result of a tribunal case. However, the proposal would open up the tribunal system to vexatious individuals who will want to take a case. In a sense, they would be assured that the charity itself will have a degree of protection, even if the individuals within it were acting in a vexatious way. Let us be honest:the test of vexatiousness, frivolousness or unreasonableness is pretty stern. The Wednesbury test concerns unreasonable action that no reasonable person would have followed. It is not simply that someone is adjudicated to be on the wrong side of an argument. Unreasonableness is a much sterner test than that. The gap between being wrong and being unreasonable is very wide.

Photo of Peter Bone Peter Bone Conservative, Wellingborough 3:00, 6 July 2006

I entirely understand the Minister’s argument. Sitting in this room, it makes perfect sense. However, it tends to err on the side of the Charity Commission. Let us suppose that a small charity thought that some wrong had been done. In reality, it would challenge the decision, go to the tribunal and make its case. Then comes the problem. It might think that the Charity Commission would employ solicitors and barristers who run up huge fees and bankrupt it, as a result of which it would not risk going to the tribunal.

Photo of Ed Miliband Ed Miliband Parliamentary Secretary (Cabinet Office)

I completely understand the hon. Gentleman’s point. It is a judgment call that we have to make in such circumstances. I assure the Committee that a review has to take place within five years of the workings of the Act, but it is incredibly important for the Government to keep under close watch the way in which the tribunal system starts to unfold and work. I have considered setting a timetable for a specific review of the tribunal, but that is probably not sensible because it would be better for there to be a real obligation and pledge on behalf of the Government to scrutinise the way in which the system works and not to set an arbitrary time limit on it. If big issues of access of justice, however, were raised, we would need to think again and find ways in which we can solve the difficulty.

I come now to the final amendment, No. 83. It refers to proposed section 2B(7), which states:

“If the Tribunal considers that a decision, direction or order of the Commission which is the subject of proceedings before it was unreasonable, the Tribunal may order the Commission to pay to any other party to the proceedings the whole or part of the costs incurred by that other party in connection with the proceedings.”

The Liberal Democrat amendment would add:

“or the decision, direction or order of the Commission which is the subject of such proceedings.”

That is another sense in which recompense for any financial loss incurred is being introduced. I have explained why we think that that is an appropriate role for the ICR and the parliamentary ombudsman.

I hope that that deals with the amendments before us, and that they will be withdrawn.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

I do not propose to withdraw amendment No. 14, because I think that the Parliamentary Secretary’s answer is bizarre. He is saying that a legal matter for which the appellant might already have gone through the Charity Commission’s complaints procedure and to the independent case reviewer might then go to the tribunal and be successful. Because of the effect of that earlier legal decision, the charity might have incurred losses. He is saying that it should then retrace its steps and return to the commission and the parliamentary ombudsman.

First, that would essentially mean explaining quite a bit of the case again, because it would mean explaining why the appellant made the losses. Secondly and more tellingly, going to the parliamentary ombudsman assumes maladministration. Not all legal errors are maladministration. Some are quite simply the result of getting it wrong, which is not maladministration. Knowing the law and getting it wrong might be  maladministration, but if the law is genuinely unclear and the tribunal decides what the law is, that is not maladministration.

So why on earth go to the ombudsman for compensation? Is the Minister saying—perhaps he is—that the ombudsman would have the power to provide compensation in a case that was not maladministration?

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

The ICR probably decided in the first place that it was not a mistake in law. If an employment tribunal can offer compensation, I do not see why the charity tribunal should not. To recount a personal anecdote, I became aware of a recent employment tribunal case by virtue of my membership of the House. It took two and a half days to hear the case and about 10 minutes to agree the compensation. That seems to be a sensible way of proceeding. Of course the amendment would give the tribunal a new power; the tribunal is new. That is not a very good argument, and I intend to press the amendment.

On access to justice, the Minister was much more conciliatory. He said that he had considered a timetable for specific review of the tribunal’s judgments, he said that a big issue of access to justice would make the Government think again and, most tellingly, he said to my hon. Friend the Member for Wellingborough (Mr. Bone) that it is a matter of judgment. It is a matter of judgment. I would like charities to feel that if they think the commission has behaved unlawfully, they can go to the tribunal without serious risk of their assets. For that reason, I shall press the amendment.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 9.

Division number 3 Nimrod Review — Statement — Clause 8

Aye: 5 MPs

No: 9 MPs

Aye: A-Z by last name

No: A-Z by last name

Question accordingly negatived.

Amendment proposed: No. 15, in clause  8, page 9, line 28, at end insert

‘and in doing so shall have regard to the need for the charity to continue to meet its objectives.’.—[Mr. Andrew Turner.]

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 9.

Division number 4 Nimrod Review — Statement — Clause 8

Aye: 5 MPs

No: 9 MPs

Aye: A-Z by last name

No: A-Z by last name

Question accordingly negatived.

Sitting suspended.

On resuming—

Photo of Roger Gale Roger Gale Conservative, North Thanet

I apologise for the delay. For those who were not privy to the conversation, we were considering the possibility that we may need a third session on Tuesday evening. That has not been determined, but the usual channels will do so in due course. Members might bear that in mind when reviewing their diaries. I do not like Members or, indeed, staff to be caught on the hop if that is avoidable.

Photo of Martin Horwood Martin Horwood Shadow Minister (Environment, Food and Rural Affairs)

I beg to move amendment No. 68, in page 9, line 36, leave out from ‘to’ to end of line 37 and insert—

‘a draft being laid before, and approved by a resolution of, each House of Parliament.’.

I shall endeavour to be brief. The thrust of the amendment is clear. It would require of both Houses a positive resolution for an order made by the Lord Chancellor under this clause. That would simply reflect the gravity of the issues under discussion, which the debate has illustrated already.

Tribunal decisions can affect the careers and personal assets of those involved in charities. They can affect the welfare of beneficiaries, and the reputation and therefore the very future of the charity itself. The decisions, the way in which they are reached and the rules that pertain to them are critical.

Photo of Ed Miliband Ed Miliband Parliamentary Secretary (Cabinet Office)

I shall be brief. The House of Lords Select Committee on Delegated Powers and Regulatory Reform reviewed the Bill comprehensively. It reported in the 2004-05 Session, and we accepted its recommendations and amended the Bill accordingly. It found the order-making powers to be appropriate and subject to an appropriate level of parliamentary scrutiny. The Government recognise that the rules will be of great interest to the sector and others, and important for the effective operation of the tribunal. We will begin work on them soon after the Bill’s passage, and we will commit to consulting on the draft rules with stakeholders, for which the Bill provides.

I shall also be happy to repeat to the Committee the undertaking that Lord Bassam gave in another place to include any hon. Members who express an interest in the consultation on the draft rules. On that basis, and with the comfort of the report from the Delegated Powers and Regulatory Reform Committee, I hope that the hon. Gentleman will withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

I beg to move amendment No. 17, page 9, line 40, at end insert—

‘2BA Suitors’ fund

(1) The Tribunal shall administer a fund (“the suitors fund”) from which it will contribute to the costs of those seeking to bring appeals and applications in accordance with Schedule 1C of this Act or appeals in accordance with section 2C of this Act.

(2) The fund shall be provided by the Commission.’.

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to discuss amendment No. 80, in page 9, line 40, at end insert—

‘2BA Suitors’ fund

(1) The Tribunal shall administer a fund (a “suitors’ fund”) from which it will contribute to the costs of those seeking to bring appeals and applications in accordance with Schedule 1C to this Act or appeals in accordance with section 2C of this Act.

(2) The fund shall be maintained at a value of £100,000.

(3) The fund shall be provided by the Commission.’.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

Amendment No. 17 is one of the most important amendments to the Bill. The National Council of Voluntary Organisations felt that the issue of right of access to justice was one of the two most important issues requiring amendment when the Bill was debated in another place in June 2005. Unless there is a cost provision to enable smaller charities in particular to have access, the tribunal will be seriously underused. Indeed, many charities will not have access to it. Lord Phillips of Sudbury used two telling expressions. He said:

“Our law is cluttered with tribunals that afford theoretical remedy to agreed citizens—” it says “agreed” in the Lords Hansard, but it is meant to be “aggrieved”—

“but are inaccessible because they are so expensive to access.”—[Official Report, House of Lords, 12 October 2005;Vol. 674, c. 350.]

In sharp contradistinction to what the Minister said a moment ago, although not out of any intent, Lord Phillips also said that if one keeps the lawyers out, one keeps common sense in. I know that the Minister does not intend to turn the tribunal into an alternative High Court of Justice, but sadly, employment tribunals, and for all I know, many others quickly get stacked up with lawyers who use up far too much time, far too much energy, and in particular, far too much money.

The Minister may feel that providing a little money to help the charity that wishes to appeal against a decision of the commission will encourage the lawyers. However, my view is that it will encourage decisions to be made on a level playing field on important legal issues.

The commission does not have unlimited resources—we do not know what resources it will have—but it will want to put the best defence that it can in any case at tribunal and it may have to make a  judgment mid-year to spend more on representation and less on public benefit tests. The problem is that it has the capacity to spend a good deal of money on representation, while the appellants do not. The creation of a suitors fund was recommended by the Prime Minister’s strategy unit in 2002. I feel strongly that we have to provide some means by which the small appellant can get to the tribunal.

Lord Bassam said in another place that he accepts that

“even small expenses may be beyond some small charities.”

I accept that. He also said:

“The Attorney-General will present cases at his own expense, so the consideration should not trouble us too much, but I accept the point that there may be difficulties for smaller charities.”—[Official Report, House of Lords, 28 June 2005; Vol. 673, c. 215.]

The Attorney-General is likely to get involved in very few cases before the charity tribunal. Indeed, the Minister in the other place accepts that, because I think that he suggested that an alternative source of funding could be the legal aid fund in exceptional cases. Again, we are talking about exceptional cases.

The legal aid fund is no more generously provided for than many other good causes. That is not a criticism of the Government. My noble Friend Lord Swinfen said on 12 October 2005 that the Minister in the other place opposed the amendment in question

“on the grounds that the Legal Services Commission will be able to grant exceptional funding in certain cases, usually public interest or test cases.”

He continued that

“the noble Lord, Lord Phillips, who is an extremely eminent charity lawyer, replied that he was unaware of the legal authority of the Legal Services Commission and that the general position has been that legal aid is unavailable to charities.”—[Official Report, House of Lords, 12 October 2005; Vol. 674, c. 351.]

Even if such funding is available, there is not much of it. We need a suitors fund so people have the opportunity to appeal. I am not suggesting that that should involve a huge amount of money and I am not even suggesting an amount of money, unlike the hon. Member for Cheltenham, although I hope that the sum involved would be near to the one in amendment No 80, and I hope that there would be a fund to allow access to justice for the small charities that deserve it.

Photo of Martin Horwood Martin Horwood Shadow Minister (Environment, Food and Rural Affairs)

I agree with the hon. Member for Isle of Wight that this is one of the most important amendments that we are considering today. I remember, long ago, back in 2002, when I worked as a mere grubbing consultant advising charities on their fundraising strategy, that there was the possibility of a Cabinet Office strategy unit report on the voluntary sector. That report eventually resulted in this Bill. However, years later, we are still trying to get it on the statute book. That report recommended the creation of a suitors fund. That suggestion was supported widely by charities, including the NCVO, and many of our noble friends in another place, including Lord Phillips of Sudbury, whose opinions I always value and often agree with.

As the hon. Member for Isle of Wight said, the response by Lord Bassam of Brighton in the House of Lords was wildly unrealistic. The idea that small charities would have the confidence to take on the possible costs of taking a case to the tribunal and that, if they had limited funds or their funds were stretched in that year, they would have to rely on the intervention of the Attorney-General or prove that their case was exceptional to the satisfaction of a legal aid body, is hopelessly unrealistic.

The suggestion has had widespread support. It is unfortunate that it got lost on the way to another place, and there is a possibility that that was a result of the Treasury being rather worried that it was some kind of blank cheque. The reason for the slight difference between our amendment No. 80 and Conservative amendment No. 17 is that we insert some reference to the value of the fund.

Photo of Martin Horwood Martin Horwood Shadow Minister (Environment, Food and Rural Affairs)

Absolutely. We always like to cost our proposals and to have them fully examined from a financial point of view. That is certainly the responsible thing to do. It is a serious point; if the reason for the opposition to the idea was the Treasury’s worry that the fund might be a blank cheque and an open-ended pot of money for charities to bring every complaint possible, I am sure that all members of the Committee and most Members of the House would be open to whatever methodologies or processes that the Government wish to propose that would enable that to happen. I caution the Minister not to dismiss the idea too frivolously. It was in the original strategy unit report and, as I have said, has been widely supported in the sector. There is obvious justice and reason behind its inclusion in the Bill.

Photo of Peter Bone Peter Bone Conservative, Wellingborough

This fund would allay, to a large extent, some of the fears that I previously referred to, and it all goes back to the classic case. Most charities are small. The fund is irrelevant to big charities as they have all sorts of departments and can arrange their affairs rather like big business—big business has no problems with anything and has departments for this, that and the other. Small businesses cannot take remedy because they do not have the time or the money, and the fund at least helps with the money side of the situation. They need only a relatively small amount at least to have the injustice heard. There is a lot to recommend the idea, and I hope that the Minister can take it on board.

Photo of Peter Bottomley Peter Bottomley Conservative, Worthing West

When the Minister is explaining why the strategy unit’s recommendation is not being taken forward, he might explain, too, whether the idea was that a suitor had to be the charity itself, an individual trustee, or an outsider with an interest in what the trust ought to be doing. He will not be surprised that I have more than one brother-in-law. The one I have in mind is Dr. George Reid, who is a trustee of the Alleyn’s estate. He went to the High Court—not  at a cost of £30,000—and received an honourable mention in the Charity Commission’s report 15 or 20 years ago. He had the sort of case that it was proper to have taken, about a failure to get agreement among the trustees, and would clearly have been regarded as a suitor. That may or may not have been a suitable case, but the interesting question is where the limitation comes in and where would it have been if the strategy unit’s approach had been taken forward. If the Minister is going to resist the amendments, he could explain to the Committee whether that is being done purely on the grounds of cost, whether he thinks they are unnecessary or whether there is some other reason of which we have not thought.

Photo of Ed Miliband Ed Miliband Parliamentary Secretary (Cabinet Office)

Again, the hon. Member for Worthing, West appears just before I stand up to speak. I believe that his family goes off for a ceremonial cricket match each year, which is well known.

Photo of Ed Miliband Ed Miliband Parliamentary Secretary (Cabinet Office)

I may have got that slightly wrong.

First, I do not think that the strategy unit simply recommended a suitors fund. As I understand it—I shall check on this point—it saw it as an alternative to the tribunal and a way of funding people to go to the High Court. We can be sympathetic to the intentions behind the amendments, but the problem is essentially raised because the Conservative amendment is open ended while the amendment tabled by the hon. Member for Cheltenham is limited. In neither case is there any sense of the criteria that would be used for who is eligible and who is not. Therefore, one faces a problem with the hon. Member for Isle of Wight’s amendment. The costs are potentially unlimited and it could be a lawyers’ charter. I am not saying that it would be one, but it could be. I admire the hon. Member for Cheltenham’s fiscal responsibility—that is a new-found thing for the Liberal Democrats—but he does not answer the question as to who would get that £100,000, who one would turn away and how one would judge that point.

Having said all that, I am in a charitable mood and understand the intentions behind the proposal and I do not want to dismiss it out of hand. I know that the question of the suitors fund has been long standing. I will take the issue away and come back on Report. I do not make any promises on that point because it is difficult. The example of employers tribunals and issues of legal aid are informative in that respect but I will take the issue away and consider it.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

I am grateful to the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Martin Horwood Martin Horwood Shadow Minister (Environment, Food and Rural Affairs)

I beg to move amendment No. 79, in page 10, leave out lines 17 to 36.

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to discuss amendment No. 18, in clause 8, page 10, line 36, at end insert—

‘2E Investigation by Parliamentary Commissioner for Administration

Notwithstanding the provisions of this Part, the Parliamentary Commissioner for Administration shall have power pursuant to section 5(1) of the Parliamentary Commissioner Act 1967 (c. 13) (matters subject to investigation) and Schedule 2 to that Act (Departments etc subject to investigation) to investigate any action taken by, or on behalf of, the Commission.”’.

Photo of Martin Horwood Martin Horwood Shadow Minister (Environment, Food and Rural Affairs)

Amendment No. 79 is a probing one that challenges the rather extraordinary proposed section 2D, which is one of the amendments to the 1993 Act, and on page 10 of the Bill. Having set up a panoply of commission and appeal processes and the opportunity of all the types of processes that we have been discussing at inordinate length today, it creates another provision that adds intervention by the Attorney-General on top of that. I would love to hear the Government’s justification for that.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

My amendment No. 18 tries to avoid doubt, which is always a dangerous thing to do. It occurs to me that the parliamentary commissioner may be capable of resolving issues that might otherwise go to the tribunal. I say that with a sense of inquiry. Is the Minister sure that any issue that is reasonably likely to be raised can either go through the complaints procedure to the parliamentary commissioner or to the tribunal? If that is the case, would it be beneficial for the parliamentary commissioner to be able to look at questions of law as well as those of administration?

Photo of Peter Bottomley Peter Bottomley Conservative, Worthing West

First, could the Minister explain whether under the proposed section 2D(4)(a) and (b), the Attorney-General’s power to intervene—which I welcome—extends to being able to order a discontinuation of an action or is it a matter of helping the tribunal in one sense or another? Second, does the Minister regard this as a suitable occasion to say whether—although this goes slightly beyond the clause—if the Charity Commission causes a High Court action to be taken against a charity, the Attorney-General has the power to order that kind of action to be discontinued?

Photo of Ed Miliband Ed Miliband Parliamentary Secretary (Cabinet Office)

The hon. Member for Worthing, West is continuing his enviable record of asking difficult questions—I preferred his last intervention to this one. Let me provide an explanation on those two points. The first amendment seeks to remove the Attorney-General’s right to intervene in any proceeding. That is in the Bill because the Attorney-General has a unique—some might say slightly odd—and important position in charity law. He is the protector of charity on behalf of the Crown. It is important to be clear about that.

Those powers for the Attorney-General to intervene do not mean that he represents either party in the dispute, but that he is supposed to have a non-adversarial role, essentially as a friend of the court, in representing the interests of the beneficiary. That is a long-standing feature of the law in this area. It is not about the Attorney-General somehow moving in on the case in an adversarial way; the role is that of a non-adversarial friend of the court. I believe that it is widely acknowledged to be a perfectly sensible idea  that he should represent a beneficial interest of the charity and that the tribunal can take his views into account.

To answer one question that was put to me by the hon. Member for Worthing, West, I am pretty sure that the Attorney-General cannot overturn the tribunal’s decisions. I shall have to come back to him later about his second brain teaser.

I move to amendment No. 18, which was tabled by the hon. Member for Isle of Wight. Let me be clear on this. As I explained earlier, the tribunal considers legal decisions, and the ombudsman has the power to investigate cases of maladministration. I understand that the hon. Gentleman wants to be assured that that is the case, and I can assure him that it is. The danger of his amendment is that it seems to open up a case in which a legal decision is being considered by the tribunal, to being considered by the ombudsman at the same time. That would be slightly odd, because one wants the tribunal to be able to take its course and for any claim of maladministration then to be made, but not for those processes to run in parallel.

Photo of Peter Bottomley Peter Bottomley Conservative, Worthing West

The Minister said that he might come back to a question that I asked. I am perfectly happy to wait until our debates on clause 38, especially if we get to consider amendment No. 122, which might be helpful to his advisers.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

It is certainly not my intention that cases should be considered in parallel or consecutively bythe tribunal and the ombudsman. My concerns are partly to do with the position of the independent complaints reviewer. I understand that the parliamentary ombudsman can consider cases only if domestic remedies have been exhausted. I assume that the work of the independent complaints reviewer is considered to be a domestic remedy for that purpose, and that one would therefore first have to go through the complaints procedure and then the independent complaints reviewer. The Minister shakes his head, so it seems that that is not the case.

It is the case, however, that a large number of complaints that have been to the ombudsman have been rejected as being out of the ombudsman’s jurisdiction. The figures that I have concerning cases since 1993 are that out of 102 cases, 63 have been rejected as being out of jurisdiction. It might be that those were all legal cases or that they were complaints about charities that should never have gone to the ombudsman; the ombudsman does not know, although the latter is assumed. Where an easier and simpler remedy than the tribunal is available, which I think that going through the ombudsman might be, it should be available despite the fact that the tribunal is available.

Photo of Ed Miliband Ed Miliband Parliamentary Secretary (Cabinet Office)

I think that that was the longest intervention in world history, Mr. Gale.

Photo of Roger Gale Roger Gale Conservative, North Thanet

I was thinking of it as a speech.

Photo of Ed Miliband Ed Miliband Parliamentary Secretary (Cabinet Office)

I shall enter it into the “Guinness Book of Records”.

I should like to clear up one point. There is the internal complaints procedure of the commission, there is the independent complaints reviewer, and there is the ombudsman. It is true that an individual must go through the internal complaints procedure of the commission, but I understand that they also have the option of going to the ICR or the parliamentary ombudsman. I do not have an answer on the specific figures that the hon. Gentleman cites, but I suspect that all the cases concern legal decisions that can now go to the tribunal; I hope that the tribunal will help in that respect. I hope that that answers his question sufficiently.

I can now answer the hon. Member for Worthing, West, because inspiration has struck. The Attorney-General has no power to order the discontinuation of a case before the tribunal or the High Court. Discontinuation will be a matter for the party bringing the proceedings; otherwise, the tribunal or High Court could of course order the case to be dismissed.

Photo of Martin Horwood Martin Horwood Shadow Minister (Environment, Food and Rural Affairs) 3:45, 6 July 2006

I am grateful to the Minister for his reply on amendment No. 79. He made an important statement about the interest of beneficiaries and the beneficial interest. I am tempted to quote an earlier assertion of his back at him. He said that specific provisions in the Bill reflecting the interests of beneficiaries might somehow unbalance the legal processes or the workings of institutions such as the commission and the tribunal, which we discussed today. If that is the role of the Attorney-General in the Bill, and if the Attorney-General will be minded to intervene on behalf of the beneficial interest of charities, and not in other ways, then on reflection I am content to withdraw my amendment, and to let the clause survive.

However, I suggest to the Minister that there might be a bit more clarity and transparency in the Bill specifically to reflect the interests of the beneficiaries and the fact that they do, after all, have a champion in this Bill. That would—if I might risk offending the Royal Society for the Protection of Birds—kill two birds with one stone. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill.

Question agreed to.

Clause 8 ordered to stand part of the Bill.

Schedule 3 agreed to.