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“all charities will have to show that they are for the public benefit...an organisation will have to show that it generates identifiable benefits that reach...a sufficiently large section of the public.”—[ Official Report, 26 June 2006; Vol. 448, c. 25.]
My concern is that some charities will find it very difficult to demonstrate that.
Mr. Lee Scott (Ilford, North) (Con): Does my hon. Friend agree that the good works done by many religious groups depend greatly on their belief? The change would certainly endanger that activity, and could perhaps stop some of the wonderful work being done by our Churches, synagogues, temples, and other religious groups?
Mr. Turner: That is exactly what I fear. My concern is that the difficulty of securing compliance with the public benefit test will make that more difficult.
Martin Horwood: The hon. Member for Ilford, North (Mr. Scott) referred to wonderful work, but that is presumably work that is wonderful for people other than the people who hold the beliefs, so that proves the exact point against which he is trying to argue.
Mr. Turner: Such wonderful work is indeed being done, but not all religious charities undertake it. Some religious charities pray, and that is the key: how can it be demonstrated that prayer is of public benefit? I find it difficult to understand how, rationally, in the face of a reasonably sceptical, but not hostile, group of charity commissioners, a religious organisation that prays can demonstrate that prayer has public benefit.
Alun Michael (Cardiff, South and Penarth) (Lab/Co-op): The hon. Gentleman used the word “pray”, but he did not spell it for us. Would he not accept that there are some people and organisations that prey, and that a distinction must therefore be made between them and organisations that pray? The common-sense approach would be to allow the Charity Commission to consider the question of public benefit.
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Mr. Turner: Curiously, I think that the right hon. Gentleman is wrong. There are of course some who prey. The Scientologists, for example, have not crept through the current definition. They do not count as a charity under the current law, under which religions enjoy the presumption of charitable status. I do not think, therefore, that the fact that some charities may prey is sufficient argument.
Bob Spink (Castle Point) (Con): I am sure that before the hon. Gentleman moves on he would want to clear up for the House the fact that praying—that is, prayer—is a wonderful activity and is helpful to society at large. I am sure that he would not wish to demur from that point.
Mr. Turner: My hon. Friend believes that, I believe that and my right hon. Friend the Member for Maidstone and The Weald believes that; I am sure that many right hon. and hon. Members believe it. The question is how that belief can be translated into proof that will satisfy a reasonably sceptical audience, and the charity commissioners may in this context be regarded as a reasonably sceptical audience. I want an answer to that very simple question, and if I get an answer to that very simple question I am likely to be satisfied.
Dr. Evan Harris: The question whether prayer has benefit in respect of medical treatment has been put to the test in a series of trials—of varying quality, it must be said—and the overall analysis is that there is no significant difference in the prayed-for group and the non-prayed-for group of patients recovering from an operation, regardless of whether they knew that they were being prayed for. If anything, there was a finding, which was not significant, that the prayed-for group did worse. So it can be tested objectively, and so far, at least in that field, there has been found to be no benefit to others, although of course it may help the pray-ers.
Mr. Turner: I am grateful to the hon. Gentleman, because what he has said is the exact opposite of what the hon. Member for Bishop Auckland (Helen Goodman), who is not in her place, said in Committee. She said that although prayer does not affect people’s propensity to illness, it does improve their recovery rates. The fact that those two completely contrary opinions are held by two perfectly respectable hon. Members illustrates how difficult it will be to demonstrate to the satisfaction of the reasonably sceptical audience that prayer is of benefit.
Angela Watkinson (Upminster) (Con): Does my hon. Friend agree that people in hospital who have the benefit of the hospital chaplaincy service are emotionally comforted by knowing that they are being prayed for? All of us who are churchgoers will know that, most weeks, we shall be asked to pray for individuals who are known to be ill or in distress of some sort, and those individuals derive a very definite benefit from knowing that they are being prayed for; it is an emotional support.
Mr. Turner: I am grateful to my hon. Friend. I am sure that people do enjoy emotional and perhaps physical benefit from being prayed for. The difficulty is that some people will not know that they are being prayed for—by a closed order, for example—and it is impossible for us, or the Charity Commission, to test the quality of that prayer. The quality of the prayer might have been poor in the case that the hon. Member for Oxford, West and Abingdon (Dr. Harris) cited.
Martin Horwood: I think that the hon. Gentleman is fundamentally misunderstanding the current status of religion in charity law. Prayer of itself, even under the current presumption, does not qualify a religious charity for charitable status. That is why closed orders are not currently charitable. There is only a presumption of public benefit; in some cases it still has to be proved. So, in restoring the current status he would not be allowing religious charities that only pray to achieve charitable status anyway.
Mr. Turner: The hon. Gentleman demonstrates that even under the current legislation there is only a presumption. The presumption that we wish to restore is a first step; it is not an open door. It is a presumption. It is rebuttable. If reasonable efforts are made to rebut it, the Charity Commission will, as it did in the case of Scientology, refuse or withdraw charitable status.
Miss Ann Widdecombe (Maidstone and The Weald) (Con): I am extremely grateful to my hon. Friend for giving way. Has he any evidence at all that the current workings of the law have caused any difficulty that would be remedied by simply removing the presumption?
Mr. Turner:
No, I have not got any such evidence. I have given the example—there are others—of organisations that have been excluded from charitable status because of the way in which they behave. There are other arguments relating to the Charity Commission’s interpretative paper—shall I say—on how it might exercise its discretion. The position paper
“Public Benefit: the Charity Commission’s approach” is secular in tone and states that public benefit must be assessed
“in the light of modern conditions”
and that keeping up with “modern society” is required if a charity is not to have its charitable status revoked. Some religions are quite concerned because they are trying to advance a better world than modern society. If they are to keep up with modern society, in many cases that will mean that they are not to aspire to a higher level, but to descend to a lower level than the ideal.
I have been given the example of a Muslim group that may oppose abortion on the grounds of Islamic teaching. There is also the example of the Scottish chairman of the Muslim Council of Britain being forced out of office in the Scottish Council for Voluntary Organisations because he stated orthodox Muslim views on sexual morality. I am concerned that those modern interpretations will be embraced by the Charity Commission and used as a means of reducing the accessibility of religious organisations to charitable status.
Mr. John Grogan (Selby) (Lab): I missed “Thought for the Day”, which I rather enjoy, this morning, but I feel that I have more than made up for it by listening to some of the interesting contributions over the past half an hour. I am inspired by the Prime Minister’s assertion that we are best when we are boldest and it is in that spirit that I want to discuss amendment No. 1. I always think that having tabled amendment No. 1 shows a certain keenness. Together with various progressively minded colleagues in the House, I tabled the amendment in July. I cannot say that I have checked the wording with No. 10, but, in a modest sort of way, it is in the audacious spirit that the Prime Minister calls on his Ministers to display.
The amendment does not attempt to define public benefit; it merely attempts to ensure a robust application of that test of public benefit by the Charity Commission. For the first time, it would give the Charity Commission a statutory base to consider questions of access to public benefit, undue restrictions, and charges—in some cases fairly high charges—made by charities in return for their services. The supporters of the amendment are not trying to say that, for example, independent schools should not be able to claim charitable status. We are saying, as I said on Second Reading, and as we say in Yorkshire, “You shouldn’t get summat for nowt.” The value that independent schools, for example, get from their charitable status is £100 million. We would just like the Charity Commission to be able to encourage them to provide more community benefit for that charitable status.
I congratulate the Minister on being open to discussions on the Bill over the summer and the autumn. I think that he will argue, among other things, that the amendment is unnecessary because the sentiments that it upholds are already incorporated in the concept of public benefit and the Charity Commission will be able, for example, to consider questions of undue restrictions. I want to put three points before the House to explain why I am doubtful
about that, and then put three questions to the Minister. Perhaps he can help to reassure me on some of those doubts.
First, there is the legal base of charity law. Without detaining the House for long, I think that most lawyers would say that the available case law is pretty sparse. Andrew Phillips, an eminent charity lawyer, wrote a few paragraphs that sum that up:
“As the Charity Commission lawyers know only too well, at the very best the absence of any inclusion in the Bill of wording indicating the scope of the Public Benefit test will leave the Commission in very uncertain legal terrain when they confront, as they surely will, a few unreformed and intransigent charity hospitals and schools.
Unless Parliament remedies that—and a modest amendment will be enough to give the judges clear discretion—the government are spoiling their own reform, which is potentially a valuable one.
The legal reality, in the absence of that, is that the existing, limited case law, particularly Re Resch, leans in favour of an undemanding public interest test, making clear that there is likely to be sufficient public benefit if, for example, a hospital or school relieves the exchequer and alternative state provisions, or indeed if it provides extra facilities for the user.”
What about the Charity Commission—the regulator—itself? It has had a slightly ambiguous attitude towards my amendment. Andrew Hind, its chief executive, spoke of a “worrying lack of clarity” in the underlying case law, and he confirmed that phrase to me in a conversation just a couple of weeks ago. Geraldine Peacock, who was chair of the commission, said that overriding any public school’s charitable status would not be possible because the Bill would not alter decisions based on case law. However, the new chair of the commission, Dame Suzi Leather, has taken a different approach. She says that she will apply the test robustly and has talked about holding seminars with stakeholders in which there will be a discussion of contemporary social mores, as she puts its, and the way in which public benefit might be defined in the modern day. Although the question of precisely how contemporary social mores would weigh in the balance against the weight of case law was somewhat left hanging in the air at the parliamentary briefing last week, I acknowledge that there are tensions—perhaps creative tensions—in the commission.
What about the voluntary sector? It, too, has taken a somewhat ambiguous position. When the amendment was tabled, Stuart Etherington, chief executive of the National Council for Voluntary Organisations, warmly welcomed it. He said that it would ensure clarity. He said:
“We hope that the government accepts this amendment or comes forward with its own amendment, agreed with the Charity Commission.”
Campbell Robb, director of public policy of the NCVO, went further. As late as September, he wrote in Charity Finance that
“the introduction of a clear and meaningful public benefit test is necessary to uphold public trust and confidence in the charity. To this end we would like to see the Bill amended to see clarity around public benefit, especially in areas where high fees are being charged.”
Hon. Members should remember the name Campbell Robb because a month later the NCVO issued a more ambiguous press release saying that my amendment might be one way of providing the necessary clarity,
but that holding seminars and a review after three years, rather than five years, might be another way. That was released on 16 October, and on 18 October, I was pleased to see—it is always good to see public servants doing well—that Campbell Robb was appointed director general of the office of the third sector in the Cabinet Office on a salary of £100,000 a year. I wish him well, but gently reflect on what has happened. Incidentally, I have received a whole host of faxes from voluntary organisations saying that they wished that the NCVO had maintained its original position, including the Royal London Society for the Blind and Community Matters.
Alun Michael: Does my hon. Friend not agree that the appointment of Campbell Robb is welcome, given his engagement with hon. Members across the political parties, which has given him an understanding of hon. Members’ concerns to take into his new role?
Mr. Grogan: I am sure that Campbell Robb will be a very capable civil servant.
I was in the middle of my list of voluntary organisations, which also included the British Trust for Conservation Volunteers and NCH, the children’s charity. Those organisations and many others took a rather different view from the final line of the NCVO.
To answer my right hon. Friend the Member for Cardiff, South and Penarth (Alun Michael), it is good that civil servants and members and officers of voluntary organisations have close associations with the House and the Government. However, there is a continuing debate in the voluntary sector on how independent of government that sector should be. On reflection, perhaps it was not a good idea that Campbell Robb, director of policy at the NCVO, which at one stage was trying to win concessions from the Government, should already have been on secondment to the Government one day a week. That has started a debate at the NCVO.
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Mr. Alan Beith (Berwick-upon-Tweed) (LD): To return to the central theme of the hon. Gentleman’s amendment, I am having difficulty in deciding what he is addressing. He has spoken about undue restriction as if that referred to charging and the kind of exclusion to which that gives rise. Will he assure me that the amendment would not affect all the various charitable bodies whose work is directed towards particular groups, whether they have worked in a particular trade or are members of a particular religious group, or, in one way or another, are defined in the purposes of the charity?
Mr. Grogan: This is the argument of unintended consequences. It will be the job of the Charity Commission to decide, case by case, whether a charity is worthy of that status. Nothing in my amendment and nothing that is suggested by the Government will take away from that responsibility. Many charities charge high fees, including one that has been mentioned to me, which deals with autistic children. Clearly, such charities provide a public benefit, and the Charity Commission will be able to make that assessment.
The Minister will no doubt argue that undue restriction is inherent in the concept of public benefit, and the Charity Commission can already make such a judgment, but he cannot have it both ways. He cannot argue on the one hand that the concept of public benefit assumes that the Charity Commission is able to weigh these matters, and on the other hand suggest that if the Bill is more explicit, it will lead to unintended consequences.
Having expressed my doubts about my hon. Friend the Minister’s position, I shall pose three questions to him, which might help to clarify matters. First, does he agree that the Charity Commission can and should consider matters of undue restriction and level of fees charged when it considers whether a particular charity passes the public benefit test?
Secondly, what sort of public benefit should fee-paying schools, especially independent schools, provide to demonstrate their charitable status? Would a token sharing of playing fields, or even an expansion of scholarships on a selective basis—contemporary social mores in all parties are against an expansion of selection—be enough? Should there not be a real sharing of resources and perhaps of teaching time with the wider community? That was suggested by my right hon. Friend the Secretary of State for Education and Skills in a seminal speech in July, when he told the national youth parliament:
“I want to ensure that private schools work more closely with the state sector, sharing facilities and expertise; with the private schools’ greater resources doing much more to improve the life chances of all the children in their community.”
Finally, the coalition between the NCVO and the Charity Commission in July, which fairly unambiguously supported the clause, has somewhat fractured. There is now division, with some supporting my hon. Friend and some taking a different view and supporting the amendment. Sometimes the best one can hope for in politics is to live to fight another day. I hope my hon. Friend is right and the public benefit test will be robust, as it is set out in the Bill. If not, I understand that there will be a review in three years. Will the review explicitly cover the issue of undue restriction and whether the Charity Commission has in practice been able to take that into account when making its determinations?
I have two other things to say. I reflect that it may be only once every quarter of a century that the House grapples with charity law and public benefit tests. If the review in three years shows that there is a need to revisit the concept of public benefit, it will require a particularly determined Minister to do that. I received a letter from Christopher Price, who was a Labour MP in the 1970s. He refers to a Commons Select Committee in 1974 that unanimously recommended a robust test of public benefit. The Committee concluded that that recommendation
“accords both with the spirit in which many of our sixteenth century public schools were founded and with a widespread feeling today that charitable activities should not be manifestly devoted to privilege or exclusiveness. We would therefore expect that our new test of ‘purposes beneficial to the community’ would only admit to charitable status those institutions which manifestly devote the education they provide towards meeting a range of clear educational needs throughout the whole community.”
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