Examination of Witnesses (Questions 1060
- 1079)
WEDNESDAY 21 JULY 2004
FIONA MACTAGGART
MP AND MR
RICHARD CORDEN
Q1060 Chairman: This is an important
point. The Charity Commission, as we heard earlier, are in an
extremely powerful position. They are not like any other group
of lawyers and, with respect, they are not like the Home Office
either because the Minister has confirmed to us that they are
a non-ministerial department, they are wholly independent. They
will operate the law, will they not?
Fiona Mactaggart: That is true.
Chairman: That is what they will do.
They will have free discretion to interpret the law. Their interpretation
of the law counts more than anybody else's, does it not? Is that
a yes or a no?
Mr Foulkes: That was a nod.
Q1061 Chairman: Unfortunately, through
the miracle of our stenographers, we cannot record nods. Yes or
no?
Mr Corden: In applying the law
in individual cases, that is true.
Q1062 Chairman: That is a yes?
Mr Corden: Yes.
Q1063 Chairman: Does the Home Office
differ from the Charity Commission view?
Fiona Mactaggart: Our view, in
common with the large majority of practitioners in the field,
is that—I have had legal advice on this—the Commission
has the power to carry out public character checks, that it has
full scope to apply the same public benefit criteria to all charities
which charge fees and that the cases which have been cited, of
which I think the most recent one is older than me, would not
have a determinative effect if brought before the courts today.
Q1064 Chairman: Can I just try to
summarise what you have said because, frankly, that was not an
answer. Do you agree or disagree with the Charity Commission interpretation?
You disagree?
Fiona Mactaggart: Yes
Q1065 Chairman: That is quite a problem.
Is that not an extraordinary situation that we find ourselves
in, that the Department that is sponsoring and has drafted this
Bill and has handed over wide ranging powers, as you have described
them yourself, to a wholly independent Charity Commission, has
a quite different interpretation of the law and the application
of the intended law from the sponsoring Department. That is an
extraordinary situation, is it not?
Fiona Mactaggart: It is a very
unusual situation, yes.
Chairman: What are you going to do about
it?
Q1066 Bob Russell: Back to the drawing
board.
Fiona Mactaggart: I do not think
we need to go back to the drawing board. Since the—
Q1067 Chairman: Confusion reigns
and you are not going to do anything about that.
Fiona Mactaggart: That is not
what I said. I responded to Mr Russell's intervention.
Q1068 Chairman: But there is confusion.
Fiona Mactaggart: I think there
has been confusion. I hope that it will not be sustained. I have
had discussions with the Chief Charity Commissioner following
the evidence session which they gave to you. Clearly if it continues
then there will need to be a mechanism to find a resolution. I
do not suggest that the resolution is best done by that because
I think the disadvantages of trying to do what Mr Foulkes suggested
are very substantial, but I have sought legal advice which I am
confident is of the highest quality and I am sure that the evidence
which I have given to the Committee about the impact of the Bill
is correct.
Q1069 Chairman: What is the mechanism?
How are you going to sort it out because at the moment, to be
frank, this is a dog's breakfast between the Home Office on the
one side and the Charity Commission on the other, the Home Office
saying one thing very clearly and the Charity Commission saying
another? Incidentally, the Charity Commission is not alone in
this regard but the Charity Commission is arguing quite a different
case. Almost the very first thing you said was that this Bill
was intended to clarify the law, instil confidence and sort out
what had become anomalies over the course of 400 years and here
we are at a core part of the Bill and there is absolute confusion.
I want to know what is the mechanism, other than what you have
ruled out, in response to Mr Foulkes' questions, ie providing
some sort of definition which would have clarified the issue?
How are you going to sort this out? What is the mechanism? What
have your conversations with the Commission revealed?
Fiona Mactaggart: I hope that
before the Committee needs to write its report you might find
that the Charity Commission and we come to a common view, and
that would be the most helpful thing that we could do on this,
I absolutely understand that.
Q1070 Chairman: So arms are being
twisted up backs even as we speak?
Fiona Mactaggart: No, it is not
a question of arms being twisted up backs, it is a question of
conversations and advice being received and so on.
Chairman: Oh.
Q1071 Mr Mitchell: By what mechanism?
Fiona Mactaggart: If the Government
did not intend the removal of the presumption of public benefit
to particular classes of charities to have no impact at all, if
that had been the intention of the Government, we would not have
bothered to do it. We believe that it is necessary for it to have
an impact. We are confident in our information as it is and we
will expect the Charity Commission to be able to conduct public
character checks on the whole range of types of charity, including
those who previously benefited from a presumption of public benefit.
Q1072 Chairman: But at the moment
you accept that there is a huge gap, a chasm, between intent and
effect, at least in the minds of the one organisation that really
counts, which is the Charity Commission.
Fiona Mactaggart: In the end the
final body that really counts is the decision of the courts because
the Charity Commission is accountable to the courts.
Lord Phillips of Sudbury: Utterly impractical.
Q1073 Chairman: We have established
that there is a gap between intent and effect.
Fiona Mactaggart: We do not think
there is but at the moment there is a problem, that is true.
Q1074 Mr Mitchell: I just wanted
to ask a very quick question. Parliament is about to rise for
the summer. If you do manage to resolve this confusion with the
Charity Commission, are you going to be able to communicate that
to us, and in particular to those who will be drafting this report
during the summer?
Fiona Mactaggart: I think it will
be very important for us to do so as urgently as possible.
Q1075 Earl of Caithness: Given your
reply to George Foulkes on public benefit, you must therefore
be content for there to be a different law in Scotland than in
England regarding public benefit and for all the trouble that
is going to cause charities.
Fiona Mactaggart: There has always
been—
Q1076 Earl of Caithness: Yes or no?
Fiona Mactaggart: I am content
with what the Scottish Executive decide for Scotland, it is their
job.
Q1077 Earl of Caithness: There is
a criteria of public benefit in Scotland, there is not in England,
therefore any charity in Scotland operating in England has got
a different criteria and different bodies. Is that not a dog's
breakfast for charities?
Fiona Mactaggart: The regulation
of charities has always been different in Scotland than in England.
Earl of Caithness: No, it has not. When
it comes to public benefit it is all new.
Q1078 Mr Foulkes: There is a groundswell
of opinion in Scotland that the criteria should be included in
the Bill. It has not been decided, the Scottish Parliament will
decide it. Being in close touch with people in Scotland, I have
a feeling that there is a groundswell of opinion within the Scottish
Parliament that the criteria should be included in the Bill and
in Scotland and I think we need to look at it, it would genuinely
create some problems. I know the law has to be different but for
it to be so dramatically different that in Scotland they would
have this legislation whereas in England the criteria were not
included, it could have pretty drastic consequences. I would not
want all private schools to move up to Scotland, for example,
or to move down to England, which is probably more likely.
Fiona Mactaggart: There has been
a tradition of different regulation in Scotland than in England
for, I was going to say as long as there has been charity but
I think that is a very risky statement to make, for a long time.
I think that on those matters which are reserved it is proper
for the Scottish Parliament and the Scottish Executive to make
their proper decisions, and I do not think it is for the United
Kingdom Parliament to decide their business for them. If the question
is whether public character is defined in the law, in my view
if you were to put a definition in the law then probably it will
not have an enormous change impact. It depends precisely what
the definition is, we cannot read the minds of the Scottish Parliament,
but it probably will not have an enormous change impact on those
kinds of cases in the first place, the problem will be in 200
years' time, frankly, if you have got a frozen definition in one
legislation and you have a more flexible arrangement in another.
In my view, a definition in the short-term will produce a very
similar result across the border but in the longer term will lead
to difference and division. That is one of the reasons why I disagree.
Q1079 Ms Keeble: Given the emphasis
the Charity Commission has placed on expressing their view as
set out by the Chairman, it seems to me that what we do not need
is a form of words that fits to get us through, which is temporary
and a patch. What you need is either legislation that is fit for
carrying out by the regulators we have got or you need regulators
who are capable and structured in such a way to carry out the
legislation. One or other has got to give. I wonder if you could
give me an indication now as to which one you think will have
to fall into line.
Fiona Mactaggart: I think I have
made clear which one I think will fall into line. I do not think
we need to change the legislation.
| 
