Examination of Witnesses (Questions 700
- 719)
WEDNESDAY 7 JULY 2004
MS GERALDINE
PEACOCK, MS
ROSIE CHAPMAN
AND MR
KENNETH DIBBLE
Q700 Chairman: Is what you are saying
that you take the view that the Bill as drafted gives sufficient
power to the Tribunal in terms of an oversight and some independent
decision-making about the Commission's decisions? Is that your
view? We have had evidence, both in writing and verbally to us,
that the Tribunal's remit should be expanded. Would you be relaxed
about the latter or not?
Mr Dibble: Our position at the
moment is that we agree with the Home Office about the remit of
the Tribunal. We think it sets the right balance.
Q701 Chairman: That is yes to the
first and no to the second?
Mr Dibble: No to the second. If
it is to be extended I would like to consider what specific areas
it is to be extended to and consider whether that might be—
Q702 Chairman: Can I just paraphrase
again because back to the earlier conversation Geraldine seems
to be saying to us, "Give us maximum flexibility and trust
us, but honestly we will behave better in future," but when
it comes to a narrow and specific question about you being held
accountable you do not want to be held accountable, do you?
Mr Dibble: Yes.
Q703 Chairman: You do?
Mr Dibble: In the appropriate
exercise of powers which are covered by the Tribunal. Take an
example—
Q704 Mr Mitchell:—That is what
we are trying to assess.
Mr Dibble:—of issuing a
publication which people do not agree with. That could not be
a matter which the Tribunal could adjudicate on, it is not part
of that review process. It is a matter really for a complaint
to the Commission about the scope of the publication.
Q705 Mr Foulkes: I think there is
a misunderstanding, Chairman. Mr Dibble keeps talking about the
draft Bill as if it were an Act. The purpose of us looking at
it is to see whether it should be changed and Andrew has asked
you a question would you want greater scope and you are just going
on talking about it as it exists as a draft. You should answer
his question.
Mr Dibble: No.
Q706 Chairman: You are perfectly
happy with it as it is, you would not want it changed and therefore
your plea is in two words "trust us"?
Mr Dibble: Yes, one caveat—
Chairman: Thank you, no, you cannot.
Andrew, you wanted to ask a question.
Q707 Lord Phillips of Sudbury: Quickly,
Kenneth, you have said this is a low-cost forum. I must confess
I doubt that. It seems to me if you have got an appeal against
a refusal of charitable status you are going to have a legal tribunal
obviously and you are going to have the same number of lawyers
there doing the same job arguing the same complex case as they
would before a High Court. How on earth is it going to be cheaper?
Mr Dibble: Many tribunals do migrate
to that more expensive forum, I agree, but the parties appearing
before the Tribunal do not have to be legally represented and
the Commission itself would not necessarily call on external legal
support to put its own case.
Q708 Lord Phillips of Sudbury: I
think you would agree that on a legal status case it would probably
have had solicitors coming to the Commission. I do not think it
is going to be any different in terms of cost.
Mr Dibble: In the most recent
case in the High Court and Court of Appeal which was taken, the
individual represented himself.
Lord Phillips of Sudbury: Right. Rare
Q709 Lord Sainsbury of Preston Candover:
One small point on tribunals. It has been suggested to us that
the Tribunal should have the right to award compensation to charities
in extreme cases. I presume that is the last thing you would want
but it would seem to me that it is a possible way of recognising
that sometimes you make mistakes and when it has been damaging
to a charity and cost them some money, they should receive compensation.
Mr Dibble: The Commission already
pays compensation for mistakes in service delivery where loss
has been caused to individuals and it also makes compensatory
payments where suggested by the Independent Complaints Reviewer.
Q710 Mr Mitchell: Who sets the level?
Ms Peacock: The Independent Complaints
Reviewer.
Q711 Mr Mitchell: Internal?
Ms Peacock: External.
Mr Dibble: Where we make compensation
payments it is very often based on the loss occasioned to a charity
caused by our inappropriate service. The review Tribunal in essence
exists to look at the decisions of the Commission and it very
much mirrors what the courts did before and it is not really a
forum for making compensation payments of that kind. It is strictly
to do with overruling or affirming decisions which have been made
by the Commission.
Q712 Lord Sainsbury of Preston Candover:
I appreciate that but would it not be healthier for the sector
if there was that discipline so that if a charity suffered as
a result of a mistake and over-zealous behaviour they should be
able to look for compensation if it has cost them a lot and there
is damage to the charity.
Mr Dibble: I would agree with
you if that was not the case now but it is the case now, the Commission
does make compensation payments.
Q713 Lord Sainsbury of Preston Candover:
There is no difference in principle then to letting the Tribunal
do it. There is an independent, separate judgment as to what level
of penalty should be paid?
Mr Dibble: The Independent Complaints
Reviewer is independent and does make recommendations to the Commission
to make compensatory payments.
Ms Peacock: I think what you are
saying is that that should translate across to the right of the
Tribunal and logically there is a logic there.
Q714 Chairman: I want to be absolutely
clear what you are saying because Mr Dibble seems to be intimating
a rather different point of view from Ms Peacock which is that
you are relaxed, are you, about the Tribunal having compensatory
power?
Ms Peacock: I am not sure whether
it is the Tribunal itself that should have compensatory power
but I think compensatory power attached to the decisions of the
Tribunal is logical in the light of what already takes place in
the decisions about practice. I think what Mr Dibble is trying
to differentiate between is the practice which happens at the
moment and what might happen and the way it might happen in the
future.
Chairman: Having said that, you would
not want the Bill amended so that is at least one proposal for
amendment that we have from you. Richard, on the question of objectives
of the wide ranging powers of the regulation.
Q715 Lord Best: Let us see if we
can get another recommendation for a possible change out of you.
The Charity Commission is given the objective under clause 5 of
encouraging charities to maximise their social and economic impact.
This does seem an extraordinary duty to place upon you. We are
not at all sure what this might mean. It is pretty ambiguous whether
the impact would be for good or ill. Often the environmental impact
comes into things but is social impact not in any case the same
as public benefit as the NSPCC suggested to us, or at least it
is very similar? Are you really happy to be given this duty of
making sure that charities maximise their social and economic
impact?
Ms Peacock: Rosie will speak first
and then I will follow.
Ms Chapman: We were a bit surprised
at some of the fuss about this because we saw it simply as a modern
reworking of the existing legislation which talks about promoting
the effective use of charitable resources. We saw the emphasis
on enabling and encouraging charities to maximise their social
and economic impact. We saw it as a modern reworking of the 1993
Act. I think we also thought it would pave the way towards a more
facilitating approach to regulation. So we were quite surprised
at the debate.
Q716 Chairman: What exactly is the
difference between social impact and public benefit, if we can
move into that?
Ms Peacock: I think probably the
simple equation is that social and economic impact equals public
benefit[31].
Q717 Chairman: I see, it is the same.
It may be a superfluous addition if we have got public benefit?
Ms Peacock: What happens at the
moment in the way in which we apply the regulation (and the onus
has not been on us to do so although we have begun to move in
that direction) is that we have focused on economic impact, we
have not necessarily focused on social impact because it is more
difficult to measure. I think it is now beholden on us, as the
commercial world moves more towards social responsibility and
the charity world gets more business-like, that social and charitable
impacts have to go together and have to be at least a double if
not a triple bottom line.
Q718 Lord Sainsbury of Preston Candover:
Why does it have to go together? Think of an environmental
charity that wants to prevent some new development. That is a
social cause or a public interest cause. It cannot be said to
be economic. I am not saying it is right or wrong but how can
social and economic impacts be synonymous?
Ms Peacock: They are joined together
in the way a charity works effectively to my mind. That is the
interpretation I am putting on the economic impact. Is the charity
working socially and economically effectively to achieve public
benefit?
Q719 Lord Best: How disappointed
and upset would you be if this clause was removed from the Act?
Ms Peacock: I would not die a
death over it but I think there is a use in it being there because
it helps people see there are different measures of efficacy and
impact that are important in society and at the moment we seem
to be hung up on SORP when there are other measures that could
be useful. It is enabling but we could do that anyway through
good practice.
Mr Dibble: It is important. We
do need something in place which turns on prompting the effective
use of charitable resources, which is the Commission's remit.
We see social and economic impact as a modern interpretation of
promoting the effective use of charitable resource. That is how
it has been seen.
31 Not in a strict legal sense. Back
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