New Clause 15

Charities Bill [Lords] – in a Public Bill Committee at 3:15 pm on 13 July 2006.

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Human rights compliance

‘(1) The Commission shall investigate the activities of a charity where it receives an allegation, substantiated by evidence,  that the charity, acting in concert with a government (whether or not a party to the European Convention on Human Rights) has committed an act which, had it been committed by a public authority, would have been inconsistent with a Convention right as defined in the Human Rights Act 1998.

(2) If, following any such investigation, the Commission finds the allegation proven, it shall either, if the charity is registered, strike the charity off the register or exercise its other statutory powers in relation to the charity, its property or assets or its charity trustees, officers or employees.’.—[Peter Bottomley.]

Brought up, and read the First time.

Photo of Peter Bottomley Peter Bottomley Conservative, Worthing West

I beg to move, That the clause be read a Second time.

The Cheltenham principle has been cited many times, but not by me; it will be now. The Bill is riddled with the substitution of the words “the commission is” for the words “the commission are”. That is Cheltenham all the way through.

I now turn to something rather more serious. I tabled the new clause very late, and so the Committee ought to know that if the Minister gives any kind of response, I do not intend to push it to a vote. Secondly, many of us have had correspondence from Benedict Birnberg, Uri Davis, Roland Rance and David Wolton. Those who have read the correspondence will know about the issue that they had in mind, but I do not think that it is appropriate for the Committee to become involved in that in any sense whatsoever.

The new clause is about human rights compliance, and I am relying quite heavily on a letter that Benedict Birnberg and his colleagues sent to the Minister, dated 26 June. I shall also be quoting from a letter sent to the Charities Bill team on 3 June. The proposed new clause

“is framed to make it clear...that English charities may not engage in activities which, were they committed by a public authority, would be inconsistent with Convention rights as defined in the Human Rights Act 1998 and to mandate”— to require—

“the Charities Commission to investigate and take appropriate action against charities which are alleged to do so by exercising its statutory powers.”

The allegation by itself should not be sufficient. The wording of the proposed amendment by which I have been assisted was based on the advice, I am told, of a senior member of the judiciary.

The letter dated 3 June is from correspondence with the Charity Commission and the charities unit, which has now moved to the Minister’s Department from the Home Office. It has been put to Benedict Birnberg and his colleagues that existing charity law is sufficient to empower the Charity Commission to take action to deal with the abuses that were alleged when a complaint was put forward against a particular charitable trust. In fact, the petitioners, if I can put it that way, supported the view that the law was sufficient. That is why they wrote to the commission, seeking the investigation of the activities that they alleged contravened international human rights laws.

The Charity Commission rejected the complaint, taking the view that it operated within a statutory framework that precluded it from undertaking such an investigation, let alone from having the power to cause any remedial action. The petitioners considered, as they argue in the letter, that there was a gap in charity law that needed to be filled, namely the deficient  powers, as they saw it, of the commission to monitor and intervene in the affairs of a UK charity alleged to be engaged in activities that would be incompatible with the Human Rights Act 1998 were it to be a public authority.

Photo of Rob Flello Rob Flello Labour, Stoke-on-Trent South

The hon. Gentleman raises an extremely important and serious matter. Could he explain to me, as I am confused, his position in relation to his hon. and right hon. Friends, who appear to have a problem with the Human Rights Act and think that perhaps we should get rid of it?

Photo of Peter Bottomley Peter Bottomley Conservative, Worthing West

No.

The petitioners continued that they carefully considered what the Charities Bill team sent back, but that it reinforced their concerns. They were told that charity law provides remedies either in circumstances when the charity’s

“purposes cease to be charitable under English law” or in circumstances when the charity

“carries out unacceptable activities (for example, activities that are unlawful...)”.

The whole point is that because charity law is, in the petitioners’ view, so unspecific and lacking in clarity and the existing statutory powers of intervention so limited, that prompts the question of what purposes are non-charitable and what charity activities are unacceptable or unlawful.

In the absence of clear statutory precepts, the reaction of the commission to the petitioners’ complaint and to similar complaints is bound to be as it was. There is no criticism of the commission in what has been said, but rather it has been questioned whether there is a gap in the law. It may be that charity law needs amending—and the petitioners would say that it certainly does—to make it explicit that an English charity, or for that matter any charity anywhere in the United Kingdom, may not engage in activities that contravene international human rights provisions and standards, and that the commission is mandated to intervene if it does so.

The proposal that was first discussed in correspondence has been changed and its most recent form is the new clause that I am offering to the Committee today. The particular wording does not matter, but the commission wishes to see—and there is an argument here that the Committee might wish to consider—an amendment that satisfied the principle behind the concerns. The underlying issue is whether non-state institutions have obligations under human rights treaties and if so, to what degree. The purpose of the new clause is to make it explicit that UK charities not only are expected to comply with international human rights standards, but can be required to do so.

There are other matters contained in a letter that could come up if we return to the issue later, but I have spelled out the issue and the responses from the Charities Bill unit, which was very open, and the Charity Commission. The underlying question is not whether the law is being applied or interpreted  properly, but whether there is a gap in the law. The Committee might benefit from hearing the Minister’s response.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight 3:30, 13 July 2006

I do not want to detain the Committee, for obvious reasons, but one issue about international activity by charities that has been drawn to my attention—and to which the Minister might slip in a response in replying to the debate—is the extent to which the commission has a duty to ascertain that money raised in this country for charitable purposes is spent for charitable purposes overseas. We know that that is the duty of the charity and of the commission; the question is whether they have the capacity to discharge it.

I am concerned because of allegations, of which I am sure Ministers and hon. Members are aware, that some religious charities in this country remit considerable funds overseas, where they are spent for purposes that are only borderline religious, at least in the sense that that is understood in the United Kingdom.

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

I am grateful to the hon. Member for Worthing, West for raising this difficult and serious issue. Things are difficult, partly because the example that the correspondence has raised seems to rest on the territorial nature of the charity. Geographical restriction as a principle is well established in charity law as a perfectly legitimate restriction that would not contradict public benefit. To introduce a new clause that appears to detract from the commission’s ability to judge public benefit on a broad basis seems to narrow the commission’s remit.

Although I am sympathetic to the new clause, it opens a door to further attempts to define more narrowly, in ways outside the public benefit test, exactly how the commission behaves. However, the issue is serious and I should like a reassurance from the Minister that, under his interpretation of the Bill, charities that engaged in activities that fell short of human rights standards would not pass a new public benefit test, and that activities undertaken overseas that are widely accepted as being charitable—in the case of Oxfam and many others that is well established—but which fall short of proper human rights standards should not pass the public benefit test either.

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

This is a fitting new clause to discuss in our last debate. The hon. Member for Worthing, West has raised a complex but important subject, although I shall not be able to give a substantive and definitive answer today, because the issues are incredibly complex and involve many parts of government.

Photo of Rob Flello Rob Flello Labour, Stoke-on-Trent South

The hon. Member for Worthing, West was unable to clear the fog over whether those on the Opposition Benches wish to get rid of the Human Rights Act 1998. Will my hon. Friend the Parliamentary Secretary consider the additional costs that would be incumbent on a charity when looking at the legal implications of making sure that it was complying with the Human Rights Act each time that it did something?

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

My hon. Friend makes a fair point. We must bear in mind three issues. First, such a proposal would require quite detailed investigative action by the commission. Secondly, that action would be outside Great Britain and, thirdly, there is much wider issue about the extent to which non-state actors are subject to the European convention on human rights.

Let me deal with each issue briefly. Of course, the commission has investigative powers and can exercise them, although the sort of investigation that would be involved when making a judgment about human rights standards would be incredibly complex. Without going into a particular case in detail, it is clear from the new clause that the issues involved would be extremely deep and complicated.

The second issue is the power of the Charity Commission outside Great Britain. It can visit other countries to look into allegations, but its staff cannot exercise any powers outside England and Wales. Its powers of investigation under the Bill are confined to England and Wales. That limits its ability to investigate outside the United Kingdom in the way suggested under the new clause, although it can, of course, hold trustees in England and Wales fully accountable for the charity’s activities.

I come now to the third and most fundamental issue, which is the extent to which the ECHR applies to non-state actors. For most purposes, a charity would not usually be subject to the Human Rights Act, which places a duty on public authorities not to act incompatibly with the convention rights. It is possible that a charity could be a public authority were it to be exercising a public functions, such as the provision of publicly funded care. However, it would be extremely unlikely ever to be exercising such a function overseas.

The new clause would be a new departure because it would place obligations on a charity not necessarily in its role as a public authority to comply with the ECHR. That is the Government’s view of the new clause. However, given its importance, the lucid way in which the hon. Member for Worthing, West presented it and the distinguished nature of those who have contacted us, it deserves a more substantive reply than I have been able to give. I shall endeavour at least to report back to the Committee in some form or another on our view. Obviously, the matter can be raised on Report.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

We must be aware of two issues, the first of which concerns when remittances are made outside the United Kingdom or England and Wales. I do not know what powers the commission has in respect of Scotland and Northern Ireland. Should the trustees be expected to demonstrate a higher level of awarenessin such circumstances so that they can show the commission that money has been properly spent than would be the case if that money were spent in England and Wales?

The second question impinges on that. I believe that I am right in saying that a charity may currently have objectives for a particular racial or ethnic group. Were such an amendment accepted, would it have an effect on certain existing charities in England and Wales?

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

I feel that I am already skating on legal thin ice. The hon. Gentleman’s question is valid  and I shall address it in any substantive answer that I give to the Committee on the new clause. The issue is important and I thank him for raising it. I shall endeavour to come back with a more substantive reply at a later date.

Photo of Peter Bottomley Peter Bottomley Conservative, Worthing West

The Minister may find that the issue should be dealt with by written statement or on Report. We have nearly finished our work so he will not be able to come back to the Committee. In passing, may I say to the hon. Member for Stoke-on-Trent, South (Mr. Flello) that I was advised, at the time that I was first elected, that bringing up a straightforward party point in the middle of a serious debate does not always carry the reputation of the Committee forward?

The Minister has dealt fairly with my points. He may have added some additional ones, because my new clause does not refer to extraterritoriality, though the example behind it is there. I fully understand the reluctance of the Charity Commission to be bound up in investigating things that may have happened—they did happen in one particular case 50 years ago—in the middle of one of the most complex areas of pain and disorder that one could imagine. Even if what I am proposing is right and acceptable, I can see that there would be arguments of practicality. For instance, what would it open up in terms of consequence? At the moment, however, there remains the question of what is right.

I should perhaps declare that I think that I was a fellow trustee with Benedict Birnberg on the Canon Collins Educational Trust for Southern Africa—the follow-up to the Defence and Aid Fund for Southern Africa. The Defence and Aid Fund was not charitable, but the Canon Collins trust was. What has been said by Benedict Birnberg and his colleagues and the way that the new clause has been proposed do not necessarily open up many of the problems that have been discussed in our brief debate. Will the Minister consider whether the approach in the new clause is right, proper and useful, and whether it is controllable? I know that he is not committed to accepting it, but I should be grateful for his reflections. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Question proposed, That the Chairman do report the Bill, as amended.

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

On a point of order. Mr. Gale, I want to say some thank yous. This is as close as I shall get to the Oscar ceremony, but I promise that my speech will not be as long as those at the Oscar ceremony—although as I understand it, I have until9 o’clock.

Let me start by thanking the Doorkeepers, the police, the Clerk and the staff of the Committee for their hard work during the last two weeks.

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

And the official reporters—I am extremely grateful to them for their work and dedication to their job. I also thank my officials, led by Richard Corden. I can reveal to the Committee that he has had the privilege of working in the strategy unit on  the report that led to the Bill, then going to the Charity Commission to reply to the Bill, and then coming into Government to implement the Bill—a real hat trick. He has ably led what is a very able team of officials.

I also thank the members of the Committee. On my own side there was a glittering array of talent. They have engaged very much with the Bill—mainly constructively. My hon. Friend the Member for Bishop Auckland (Helen Goodman) had 11 amendments of her own, which showed her reputation for independence. My right hon. Friend the Member for Cardiff, South and Penarth has brought his great expertise to the subject and to the Committee, and I am very grateful to him.

My hon. Friend the Member for High Peak (Tom Levitt) has coined a new principle, which I expect will endure beyond this Committee. I am grateful to all Members of this Committee, especially my hon. Friends the Members for City of Durham (Dr. Blackman-Woods) and for West Bromwich, West (Mr. Bailey) who have been extremely kind to me. Most importantly, my hon. Friend the Member for Erewash (Liz Blackman) has kept me in order as I predicted that she would do.

Let me also pay tribute to some notable contributions on the other side, including the hon. Member for Worthing, West and the hon. Member for Cheltenham who has asked me many difficult questions to which I have not known the answer. I also pay tribute to the hon. Member for Cheltenham who has brought good humour and a new principle to this debate and to the hon. Member for Isle of Wight who has brought his considerable talents and assiduousness to the work of this Committee. Finally, thanks to Mrs. Humble and to yourself, Mr. Gale, for your stern, but fair, chairmanship. Finally, I think that we have met the two principles of being a charity: charitable purpose and public benefit. I thank all members of the Committee.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight 3:45, 13 July 2006

Further to that point of order, Mr. Gale, may I endorse the remarks of the Parliamentary Secretary? I am grateful to those whom he has mentioned and my failure to repeat them individually is not an indication that I am not genuinely grateful to them. I am also grateful to him for his forbearance on occasions, assistance on many occasions and genuine agreement and attempt to reach consensus wherever possible on the further proceedings of this Bill.

I am grateful to my hon. Friends and in particular, my hon. Friend the Member for Upminster (Angela Watkinson) for her assistance, to my hon. Friend the Member for Worthing, West for the great knowledge that he has brought to the Bill and to my hon. Friend the Member for Cheltenham in providing a useful “butt”. I also acknowledge the support of my research assistant. I think the job of a virgin Front Bencher depends heavily on the assistance of their research support.

I am grateful to the officials of the Charity Commission which has responded to my frequent letters, and to the hon. Gentleman’s predecessor, the Under-Secretary of State for Northern Ireland, the  hon. Member for Wythenshawe and Sale, East (Paul Goggins) for having been quick to respond to my many inquiries.

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

Further to that point of order, Mr. Gale, I would like to add my thanks to yourself and Mrs. Humble for the firm but fair way in which you have regulated us. My thanks to the Clerks and the officials, both those who are present and those in the Minister’s office who have worked hard behind the scenes to help the Committee proceed.

The spirit in which this Committee has undertaken its deliberations is in contrast to my only other experience of a Bill in Committee, which was rather more confrontational, less humorous and less constructive. The Bill will be received well by the voluntary sector. The spirit in which the Bill has proceeded as a piece of legislation is exemplary. The Minister’s tone and attitude in responding and listening to the points that we made in a serious way reflected well on him.

I pay credit to my researcher, Jake Rigg and the hard work that he and Elizabeth Fosten have done in my office to try and take me as a fellow Committee virgin through this process. I am grateful to the hon. Member for Isle of Wight for describing my “butt” as useful. I will try and think of a comparable comment for him. I take it in the spirit in which I assume that it was meant. Finally, I thank the hon. Member for High Peak for recognising that Cheltenham is indeed a town that deserves its own principle.

Photo of Peter Bottomley Peter Bottomley Conservative, Worthing West

Further to that point of order, Mr. Gale, if Back Benchers are allowed to join in this exchange of thanks and praise, I am glad that the Minister referred to those who backed him up—those in his Department and the Charity Commission. However, I do not think that we have mentioned trustees or the charity lawyers who give them guidance. They deserve to be mentioned for their attention to what has gone on, not just in Committee, but in previous years. The lawyers will also be helping trustees when the Bill comes into force.

The way in which the Front Benchers have led the debates has been exemplary. I say to the Minister, in the hope of doing his party as much damage as possible, he deserves his place on the Front Bench and the sooner that he gets into opposition and lets us take over his role, the better.

Photo of Tom Levitt Tom Levitt PPS (Rt Hon Hilary Benn, Secretary of State), Department for International Development

Further to that point of order, Mr. Gale, I never thought that I would rise, accused of having said that Liberals have principles. I know that the Cheltenham principle will be forever with us and brings a warm glow to the heart of my hon. Friend the Member for West Bromwich, West, who is a native of Cheltenham.

On a serious note, I do not expect that on Report we will bring too much controversy or dissent. Over the four days of our work, we have witnessed a serious and timely updating of charity law which, as we know, has been with us for 400 years. I believe that the importance of the voluntary and community sectors, and the third sector generally, is in logarithmic phase at the moment and is of ever increasing value and  importance. I am proud to have served with colleagues on both side of the House in taking the matter forward.

Photo of Roger Gale Roger Gale Conservative, North Thanet

In the spirit of charity and public service, I have listened to the remarks of the past 10 minutes with great interest and I have been unable to discern any matter that is properly a point of order for  the Chair. However, continuing in that vein, I thank all Committee members, on behalf of Mrs. Humble and myself, for the courtesy and good humour with which deliberations have been conducted. That always makes life much easier. I add my thanks to the officers and staff of the House, without whom our work would be impossible.

Question put and agreed to.

Bill, as amended, to be reported.

Committee rose at eight minutes to Four o’clock.