Joint Committee on the Draft Charities Bill First Report


12 Lessons from the inquiry

Timescale

395. The draft Bill was announced in the Queen's Speech on 26 November 2003. The Joint Committee was set up on 10 May 2004. The draft Bill was published on 27 May 2004. The Committee was ordered to report by 30 September 2004.

396. The main consequence of the delay in publishing the Bill and the tight deadline for reporting was that those affected by the draft Bill had only a short period of time in which to submit written evidence. It also meant that we were only able to take oral evidence at eight meetings before starting to prepare a report. We have already paid tribute to the many organisations and individuals who nonetheless provided us with a wealth of experience and comment on the wide range of provisions in the draft Bill.

397. We understand that these tight deadlines are not uncommon in pre-legislative scrutiny and that other Joint Committees have drawn this problem to the attention of both Houses. The difficulty can be mitigated by appointing a Joint Committee as early as possible - even if publication of the draft Bill is slipping. This enables the Committee, as we did over two weeks, to undertake preliminary briefing. A minimum period for pre-legislative scrutiny of 12 sitting weeks would also enable such inquires to be carried out with due respect for the rights of those who wish to submit evidence.

398. We recommend that when a draft Bill has been announced and scrutiny is to be conducted by a Joint Committee, the appointment of the Committee should take place well in advance and should not be delayed by any slippage in the timing of the draft Bill. We recommend that neither House should agree to deadlines in motions to appoint Joint Committees where the time for consideration of the draft Bill is less than 12 sitting weeks from the date of publication of the draft Bill.

Supporting Documents

399. Throughout this report we have drawn on figures contained in the Regulatory Impact Assessment (RIA) published with the draft Bill. At several points we have called for fuller figures to be included in the RIA with the real Bill. The RIA contains no proper estimate of the benefits and risks involved in the Bill. There are serious problems with the estimate of costs and no estimate of the impact of regulation.

400. There are two other aspects of a draft Bill which are normally considered in pre-legislative scrutiny: human rights and delegated powers. The Joint Committee on Human Rights normally reports on the ECHR implications of draft Bills and we understand that it will do so shortly on this draft Bill. It has not been possible within the tight timetable for that Committee to publish a report in time for it to be taken into account by us. We understand, however, that the Joint Committee on Human Rights, as well as welcoming the addition of the promotion of human rights to the list of charitable purposes intends to draw the Department's attention to two issues relating to the advancement of religion and the position of independent schools.[410] No doubt these points will be taken into account in debate on the real Bill.

401. The Lords' Committee on Delegated Powers and Regulatory Reform considers the delegated powers in real Bills. Like some previous Joint Committees we have obtained from the Home Office a memorandum on the delegated powers in the draft Bill.[411] This lists some 18 order-making powers including:

a)  rules on appeal and procedure for the new Charity Appeal Tribunal

b)  changes to the financial thresholds at which excepted charities have to register

c)  appointment of principal regulator for exempt charities

d)  detailed provision on charitable incorporated organisations (CIOs)

e)  reserve power to control fund-raising.

402. We expect that both Houses will want to debate any statutory instruments brought forward on the five subjects listed above. We defer to the Delegated Powers and Regulatory Reform Committee on whether the parliamentary procedures (affirmative, negative or none) applicable to the exercise of these powers are appropriate, with one exception. We note that the reserve power to control fund-raising - which would be used if self-regulation fails - is subject only to the negative procedure. This would not automatically require a debate, even in a standing committee in the Commons. If self-regulation fails to such an extent that the reserve power has to be invoked, we believe the seriousness of the situation would merit debate in Parliament.

403. We recommend that the reserve power for the regulation of fund-raising by charities in clause 36 of the draft Bill should be subject to the affirmative procedure.

404. In this report we have concentrated on the substantial policy issues raised in the evidence. That evidence also contains a large number of detailed points about the Bill. To ensure these are aired we have put together in a schedule all the points made in written evidence received by the end of June and have asked the Home Office to comment on them. This schedule is published with the report on pages 115-116. We also draw attention to several memoranda we have received also containing very detailed points on the report which we expect the Home Office to take into account when preparing the real Bill.

405. We have noted in paragraphs 100 and 249 the lack of information in the explanatory notes on the consequences of removing the presumptions of public benefit and the details of the Charitable Incorporated Organisation.. We have called for greater clarity in the explanatory notes accompanying the real Bill.

406. One further barrier to understanding this draft Bill has been mentioned in paragraphs 381-4 above in the context of consolidating the charity law. We sought and obtained from the Home Office a paper copy of how the legislation would appear if the draft Bill was passed and the 1992 and 1993 Acts amended. It was our intention to publish this on the Committee's website to aid understanding of the Bill. Unfortunately - and to our surprise - a publicly available electronic version of the previous and proposed legislation could not be obtained. The Home Office was only able to produce one from commercial sources and this could not be published without the permission of the publisher. We understand that while The Stationery Office does publish electronic versions of past Acts, it does not maintain an up-to-date version including changes made by subsequent legislation.

407. We recommend that when departments produce draft Bills for pre-legislative scrutiny they should make available an electronic version of how current legislation would be amended if the draft Bill is enacted, either to the relevant parliamentary committee or on the departmental website.


410   Not yet published at time of this report but will be available on www.parliament.uk/parliamentary_committees/joint_committee_on_human_rights.cfm Back

411   See p186 Back


 
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