ORAL EVIDENCE
Examination of Witnesses (Questions 1-22)
Chairman: Lords, ladies
and gentlemen, this is now a public session of the Joint Committee
on Consolidation Bills. I should formally ask Members to declare
any relevant interests.
Mr Dorrell: May I
declare an interest as chairman of an independent school trust,
which is a registered charity?
Damian Collins: I am chairman
of a heritage project that is a registered charity in my constituency
of Folkestone.
Lord Swinfen: I am director
and founder of a charity.
Baroness Mallalieu: I
am a trustee of three charities: Racing Welfare, the National
Association of Stable Staff and the Horse Trust.
Lord Razzall: May I
declare an interest as chairman of the Topolski Memoir?
Chairman: I declare an
interest as a trustee of a small charity to do with the scout
movement in Northern Ireland.
Jesse Norman: I declare
an interest in several charities: I can give all the details if
that would help.
Q1 Chairman: May I introduce
Dr Helen Caldwell, who has been in charge of drafting the
Bill? She is a former parliamentary draftsman but has stayed with
the work to prepare the Bill for Parliament. Dr Caldwell,
would you like to introduce yourself and make any introductory
remarks that you think might assist us?
Helen Caldwell:
Certainly. I think the Chairman has indicated my background, so
I shall start with some introductory remarks about the Bill. The
Bill has been produced in response to demands for consolidation
made when the Charities Act 2006 was going through Parliament.
The Bill has been subject to consultation and it takes account
of the responses to that consultation, apart from any involving
policy changes which could not have been made within the constraints
of the consolidation process.
The Bill brings together provisions from different
Acts. The three main Acts involved are the Charities Act 1993,
which was itself a consolidation, the Charities Act 2006, and
the Recreational Charities Act 1958. The Bill also incorporates
the effects of a large number of amendments made by other Acts
and statutory instruments. The result of this complicated legislative
history is a very complex body of law.
The Bill has been preceded by the Charities (Pre-consolidation
Amendments) Order 2011. The power to make that order was conferred
by the Charities Act 2006, and the order was made on 2 June.
A power to make pre-consolidation amendments has become common
for modern consolidations. The detailed research that a consolidation
involves often throws up little glitches in the existing legislation,
which need to be corrected to produce a satisfactory consolidation.
The Bill incorporates the amendments made by the pre-consolidation
amendments order, but as you know, apart from that, the Bill must
reflect existing law exactly as it is.
Q2 Chairman: Thank
you. With your permission, I think we should now pass to considering
the terms of the Bill. It
might be most appropriate to consider it in a number of segments,
some of which will require more detailed consideration than others.
We will start with Part 1, which comprises Chapters 1 and 2, clauses
1 to 12. There are some proposed amendments to those clauses,
which I will ask Dr Caldwell to introduce.
Sorry, before we do that, it is customary to postpone
the title. The question is that the title be postponed.
Title postponed.
Helen Caldwell:
The only amendments tabled to Part 1 apply to clause 4. The first
would leave out subsection (1) and insert the contents of subsection
(5), and another amendment that goes with that would make a change
to the index, to alter the cross-reference. The amendment was
triggered by some points that Lord Phillips of Sudbury made, which
have been the subject of discussion in correspondence. The point
about subsection (1) is that it is not really essential for it
to be retained. It just tells you what the clause is about, and
it is thought helpful to move subsection (5) up into the place
of subsection (1).
Chairman: Lord Phillips of Sudbury took this
up with me during the course of preparing for the Committee, and
made some helpful suggestions. I took those up further with Dr Caldwell
and this is the solution that we reached. It is recommended to
the Committee as being an improvement in drafting, but it does
not change the sense in any way.
There are also two suggestions—they are not
necessarily matters for the Committee, but just to keep you informed—to
shorten the heading of clause 3 into "Descriptions of charitable
purposes" and to delete the words "Charitable purpose"
from the heading of clause 4 and leave it as "The public
benefit requirement". Those changes, if my statutory interpretation
is correct, are not part of the Bill. It is an administrative
matter, but members may like to know that that is proposed.
Has any member anything that they would like to ask,
or any comment that they would like to make, on clauses 1 to 12?
Charlie Elphicke: My Lord,
you must forgive me, because this is the first Joint Committee
upon which I have had the privilege to sit, and it is a great
privilege to sit under your chairmanship. I am not entirely sure
whether, under the procedures of Joint Committees, I should refer
to you as your lordship or as Chairman. I would be most grateful
for your guidance.
Chairman: I am happy with
whatever you are comfortable with.
Charlie Elphicke: Mainly
for debating and discussion purposes today, I tabled an amendment
concerning the presumption, and what one might call the burden
of proof, in relation to the public benefit provisions. I tabled
it because my concern is that the law is not entirely clear as
it stands. I feel that because the matter is currently before
the law courts, and the probing amendment was designed to see
if the law could be made clearer in relation to the public benefit
provisions. There seems to be a certain lack of clarity. I am
quite relaxed as to whether it is the right thing to do to move
the amendment formally, or simply to raise it as an issue for
discussion about the proper remit and interpretation.
Chairman: Might I ask
you at this stage whether, before we deal with it, you will spell
out for the members of the Committee exactly what the amendment
you are discussing is and what effect it will have?
Charlie Elphicke: The
amendment would leave out the word "not" from clause
4, page 3, line 19. There is currently a presumption against a
charity under any particular head being for the public benefit.
The removal of the word "not" would presume in favour
of the public benefit. The reason I raise that is because the
issue as to whether a charity is for the public benefit is seemingly
a matter of some uncertainty. While we have to report to both
Houses that there are no hidden changes in the Bill and that the
law is not changed in any way, nevertheless it seems that there
is a lack of certainty in relation to whether there should be
a presumption in favour or against public benefit as a starting
point for any particular charity under any particular head. The
issue has been raised and has been difficult for many charities,
and it has caused a level of uncertainty that is inherently undesirable
in the administration of our law and legal system. It might be
better, as a starting point, that public benefit is presumed,
in terms of the burden of proof, rather than presumed against.
Chairman: It may well
be that several members of the Committee would be quite sympathetic
to an amendment in those terms being contained in the Bill, but
I must advise them that it would be a change in the law as it
has come to the Committee. It would be outside our terms of reference
and our remit to accept an amendment with that intent. If we were
to do so, we could not issue our report without a very considerable
qualification.
You have made the point, and you have probed. It
will be drawn to the attention of the Government, and it will
be on the published record of this Committee. The advice from
the Clerks and from Dr Caldwell, and it is certainly my strong
advice, is that the Committee, whatever it may feel, ought not
to consider the amendment. The proper thing is to invite you,
having made your point, not to move the amendment at this stage.
Jesse Norman: May I make
a supplementary point? My name is also on the amendment paper
in support of the amendment. My concern, which is not unrelated
to the one that has already been expressed, is that there is an
internal inconsistency in the Bill between clause 4, which is
the one identified, and clause 3.
Clause 3 sets out what the charitable purposes are
entitled to be. It is part of the custom and tradition of this
country that charitable purposes are precisely stated to be for
the public benefit, so there is an internal inconsistency in stating
that some charitable purposes are not for the public benefit.
That concern is an important motivation in my seeking to clarify
the law, rather than to change it.
Chairman: The law, as
contained in the 2006 Act and its predecessors, is in that form.
If the amendment is designed to clarify the law by changing the
form, we are going beyond consolidation. As much as many members
might agree with the thrust of what you say, I have to advise
that it is outside our powers.
Jesse Norman: Could it
not be noted as a condition attached to the approval of the Bill
that this Committee has reservations about the internal consistency
of clauses 3 and 4? Consolidation Bills, after all, address the
presentation of the law as it stands, so if the law is in some
sense defective, it should be noted as such by the Committee.
Chairman: The whole of
our proceedings are being transcribed and will be published, so
your point is in the public domain.
Q3 Jesse Norman: I suppose
I am asking for formal recognition of the point by the Committee,
rather than merely its inclusion in the public record.
Helen Caldwell:
I wonder whether I can reassure the Committee on the question
of internal inconsistency.
I don't believe that there is such an internal inconsistency.
Clause 2(1) states:
"For the purposes of the law of England and
Wales, a charitable purpose is a purpose which—
(a) falls within section 3(1), and
(b) is for the public benefit (see section 4)".
That means the concept of charitable purpose consists
of two components. The first component is elaborated in clause
3, and the second is the subject of clause 4. So it is wrong to
say that charitable purposes are set out in clause 3. Clause 3
merely sets out the types of purposes, which is slightly open-ended,
but the types of purposes that — they are potential charitable
purposes — if they are for the public benefit. So I am afraid
I don't see the internal inconsistency that you mentioned. It
may be that I misunderstand your point.
Jesse Norman: I think
that is a helpful clarification. It brings out that the effect
of the legislation is to abridge the traditional understanding
of charitable purpose and to circumscribe it with some further
public test. That is certainly something that we recognise will
be covered in further legislation. I am grateful for that.
Lord Campbell of Alloway:
Complex law that is related to whatever circumstances cannot be
totally clear to anyone such as myself as a common lawyer, but
I defer to the professional expertise of those who deal with this
kind of law. For my part, I am wholly content to defer to Lord
Phillips of Sudbury. If it is clear to him, I will be totally
satisfied. The explanation just given is a great help. Thank you.
Baroness Mallalieu: Lord
Chairman, as someone who has been on the Committee for what seems
like a very long time, the frustration of the Committee is that
we are not able to improve the law as it comes before us. We have
tried in the past, and it has not been well received. Having heard
what Dr Caldwell has just said, which seems to make sense,
it would be wrong to add any rider to the report we submit, because
clause 4 plainly places a burden on people who seek the benefit
of charitable status to demonstrate that there is a public benefit,
which is a requirement. It is right, in my view, that that should
be so, but that may not be the view of other members of the Committee.
I would be unhappy to see the Committee endorse anything that
weakens the test that has to be passed.
Charlie Elphicke: Lord
Chairman, having listened to what other members of the Committee
have said, I am increasingly persuaded that the detailed provisions
of clause 3 are arguably otiose. Clause 3(1) sets out poverty,
education, religion and a load of other things, and then has in
effect a sweeper, which says, "and any other purposes"
that are not in the paragraphs. The public benefit test seems
to have superseded the entirety of the traditional headings. Arguably,
if what is being said is correct, a proper consolidation might
be the simplification and removal of most of subsection (1) to
say, in effect, that a charity is a wide-ranging thing that is
for the public benefit.
I raised the amendment on the public benefit, although
I admit it was a probing amendment, to seek clarification on a
question of policy. Was the policy that the organisations under
the traditional headings of poverty, education, religion and so
forth should or should not be charitable in principle? Having
listened to the debates we have had, the real question might not
necessarily be on the nature of the legislation, but on its implementation
by those in the Executive branch, who are responsible for it.
In this case, I think that is a non-departmental public body.
I raise that point because so many churches and religious
charities have raised concerns with me about what they see as
their persecution by the Charity Commission and the activist manner
in which they feel it goes after anything that is not what in
modern parlance would be called "politically correct",
while turning a blind eye to charities that campaign and talk
the talk, rather than walk the walk, shall we say, in education,
religion in its traditional guise and in alleviating poverty.
In the light of that and of this discussion, perhaps the real
issue is a matter of proper consideration of the lack of confidence
that so many charities have in the Charity Commission, rather
than the lack of confidence they have in the law as it stands.
Perhaps my questions and issues are better directed at the Executive
branch in terms of future leadership to restore trust and confidence
in the Charity Commission, rather than in terms of a change in
law.
What I take from the debate, is that I should make
the case to Ministers that we need a more positive, dynamic and
all-embracing leadership in the Charity Commission, which ensures
that we get the best for charitable purposes in true help for
the grass roots, rather than random lobbying and the abstruse
causes that people sometimes like to pursue with public money.
Jesse Norman: The position
of the rules on policy matters is clear and well taken; I appreciate
that. My hon. Friend raises an important question as to whether
the Bill has been properly consolidated if clause 4 in fact succeeds
clause 3. That is something I would like to explore quickly now.
With great respect, I would also like to take issue with Lord
Campbell of Alloway. I do not think it is our purpose to defer
to legal experts on all matters on the law before this Committee.
It is to listen to those and to interrogate them from a plain
man's perspective, representing the interests of the people of
this country. I would not agree that we should be utterly deferential.
Else, why have parliamentarians and a Committee such as this at
all?
Chairman: Would you like
to spell out in what respect you are unhappy about clause 4 succeeding
clause 3?
Jesse Norman: To develop
the early part of my hon. Friend's point, does stating that it
must satisfy the public benefit requirement in effect supersede
the statement of charitable purposes? To what end have a statement
of charitable purposes, if the true test is whether there is a
public benefit conferred?
Chairman: It seems to
be quite clear from clause 2 that it has a double purpose, as
Dr Caldwell said. We have to satisfy both limbs, both criteria.
I find it a little difficult to see any inconsistency in that.
Q4 Jesse Norman: It would
be helpful if Dr Caldwell could spell out what is contained
in clause 3 that would not be superseded by clause 4.
Helen Caldwell:
May I try to answer what I think was the point being put forward?
Subsection (1)(m) of clause 3 starts with the words "any
other purposes". I think the point was: if any other purposes
can be potentially charitable purposes, what do you need clause
3(1) for? What is the point of clause 3(1)? However, it does not
say only "any other purposes". It says, any other purposes
"that are not within paragraphs (a) to (l) but are recognised
as charitable purposes by virtue of section 5"—that
is some stuff about recreational charities—or that are analogous
to any of the specific purposes that have already been mentioned.
I think the function of that, the legislative intention behind
it, was to take a list of purposes that ought to be capable of
being charitable, but to go on allowing the courts to take into
account changing circumstances, because I think the position historically
was that the nature of the purposes that could be charitable has
been developed very slowly, on a case-by-case basis, as times
changed. That is really the function of paragraph (m). It is to
allow a bit of elasticity, but it does not say "anything
else you like". It is not as wide as that. You still have
to go through clause 3(1), if you want to end up with a charity.
Jesse Norman: I am grateful.
Damian Collins: I want
to put on the record my support for parliamentary colleagues who
tabled the amendment, although my name is not included on it,
and for this helpful debate. I am still sympathetic to the view
that, if people meet the criteria of clause 3(1), the presumption
should be in favour of their intention unless it can be demonstrated
that they have clearly fallen foul of the purpose test, but in
some ways that is clearly a debate about the legislation as it
stands. I would welcome your guidance on what powers we have as
a Committee to recommend further parliamentary scrutiny, perhaps
outside the Committee, should we wish it.
Chairman: I fear that
the short answer to that is, none.
Lord Campbell of Alloway:
I am not trying to be difficult about this, but as a matter of
interpretation, Lord Chairman, you cannot operate clause 3 without
clause 4. It seems to me that the effective clarification, which
seems to be required, is to read them in context as they stand,
and then you get a reasoned result. Complex, yes, for me, certainly,
but if one is right about the question of interpretation and how
one should approach it, I think that perhaps the problem of clarification
that was raised, if I understand it, is dealt with.
Chairman: Are there any
other matters members would like to raise on any of clauses 1
to 12?
Clauses 1 to 3 ordered to stand part of the Bill.
Clause 4
Amendment A1 agreed to.
Chairman: Do the two members
who proposed the amendment, which I will call A1A, concerning
removal of the word "not" in clause 4(2) wish to move
it?
Charlie Elphicke: With
the leave of the Committee, I humbly beg leave to withdraw the
amendment.
Amendment, by leave, withdrawn.
Amendment B1 agreed to.
Clause 4, as amended, ordered to stand part of
the Bill.
Clauses 5 to 12 ordered to stand part of the Bill.
Chairman: I suggest that
we move on to Part 2 and take it as a whole, that is, clauses
13 to 21, dealing with the Charity Commission and the official
custodian. There are no issues in the notes on this or amendments
proposed. Does any member have anything they would like to say?
Clauses 13 to 21 ordered to stand part of the
Bill.
Q5 Chairman: We
come to Part 3, clauses 22 to 28. There is a note about clause
22, and I ask Dr Caldwell to speak to that please.
Helen Caldwell:
The note is about the precise wording of clause 22. You won't
find exactly that wording in the existing law. The reason for
changing the wording slightly is to recognise the true state of
the law as it is and to be helpful to the reader.
Clause 22 states that the meaning of "exempt
charity" that has just been given is "subject to any
other enactment by virtue of which a charity is an exempt charity."
In contrast, the wording in the existing law merely makes the
meaning of "exempt charity" subject to a provision in
the body of the Charities Act 1993 which treats common investment
funds and common deposit schemes as exempt charities. That provision
is prospectively repealed—the repeal hasn't been brought
into force. You can find the guts of that proposition in a Schedule
at the end of the Bill that deals with provisions that are due
to be brought into force.
The reason clause 22(2) goes wider and refers to
"any other enactment" is because there are pieces of
legislation outside the Charities Act 1993 that confer exempt
charitable status. Such provisions are mainly in subordinate legislation,
and at the moment there are quite a few of them, but when the
exempt charities order and principal regulator regulations come
into force, which is expected to be at the beginning of August,
the number of bodies that are exempt by virtue of provisions outside
of the 1993 Act will be reduced. But a power to confer exempt
charity status under the Learning and Skills Act 2000 will remain,
and there will be at least one body that has exempt charity status
under subordinate legislation made under the 2000 Act.
So clause 22(2) will still be a perfectly accurate
description. You cannot rely on the contents of this Bill to find
all of the exempt charities.
Chairman: So that is why
the clause is drafted as it is. I did say that this is a pretty
technical Bill.
Q6 Lord Razzall:
It seems to me that this is an ingenious way of solving what is
a technical problem, but it is, nevertheless, a problem. As the
Committee can only consolidate the law as it currently stands,
are you satisfied that drafting clause 22(2) in this form is within
our power?
Helen Caldwell:
I think it simply represents the existing law.
Q7 Lord Razzall:
Although not the law as set out in the charities legislation that
we are consolidating.
Helen Caldwell:
The charities legislation that we are consolidating is subject
to later legislation. There is how the interaction—
Q8 Lord Razzall:
I understand the ingenuity of it.
Helen Caldwell:
You might say that, in an ideal world, other legislation ought
never to confer exemption. That would be neater, but in the note
that I wrote for the Joint Committee, I pointed out that it is
extraordinarily difficult to police, because exempt charity status
can be conferred by a private Act and so on. So this will not
actually go wrong.
Q9 Lord Razzall: No,
I understand that it will not go wrong. The question is whether
we have the power to put it in, so that it doesn't go wrong.
Helen Caldwell:
I believe that it's perfectly within what can be done on consolidation,
because it simply reflects the existing law, as it stands, when
we expect the Bill to come into force.
Q10 Jesse Norman:
Could I press you on that question? I don't understand a consolidation
for all that doesn't exist yet. Perhaps I've missed something.
Helen Caldwell:
It is true that there are regulations and orders that are in the
process of being made. We are amending the Bill to take account
of those SIs, when they are made. However, we undertake to advise
Ministers that they must not enact the Bill until it is quite
plain that the exempt charities SI has been made.
Q11 Jesse Norman: Is
it theoretically possible that the SI might not be passed, or
that it might pass in a different form that would be incompatible
with this consolidation?
Helen Caldwell: Theoretically,
it is possible that the SIs might not be made, but then my duty
and that of my colleagues would be to make sure that the consolidation
does not go wrong. This does not actually relate specifically
to the clause that we have just been discussing, because the point
about the SIs that are in the process of being made is that they
slightly reduce the value or helpfulness of this proposition,
although they do not eliminate the need for it.
Q12 Jesse Norman:
I can perfectly understand that it might be incredibly helpful
to have this piece in, but it seems to me that you are slightly
equivocating on the issue between two things. One is whether we
have the formal power, which is the question that Lord Razzall
raised, and the second question is whether, given that we don't
have the formal power, it is all really okay, because it will
work out well and you will advise the Ministers if it doesn't.
Helen Caldwell:
I probably was not being helpful in mentioning the SIs, because
if you just look at this under the law, disregarding the SIs that
are in the process of being made, in relation to clause 22(2),
there are various examples of bodies that have exempt charitable
status—I am afraid that their names are in footnotes in
the notes that I have written for the Joint Committee.
Q13 Lord Campbell of
Alloway: If I have what you are saying right, this is within
the remit of the application of law, as it stands.
Helen Caldwell:
What I am saying is that the words in clause 22(2)—you do
not find the words "any other enactment" in the Charities
Act 1993. However, the effect of legislation passed or made after
the enactment of the 1993 Act is to override some of the content.
I am just making slightly more explicit what has actually happened,
as a legal fact.
Q14 Lord Campbell of Alloway:
So, it is within the statutory remit of the law as it stands.
Helen Caldwell:
It reflects the law as it stands.
Charlie Elphicke: The
proper test on this issue might be to ask, were an amendment to
be moved in this Committee to include this provision, would it
be in order and fair enough for it to be put forward? It seems
to me that we are hearing clear evidence that it would bring the
Bill into conformity with the existing law.
Chairman: Plus
the law that is expected to be in operation by the time this Bill
becomes law. There is a careful progression in the timetable,
and one of the important functions of parliamentary counsel with
departmental officials is to remind the Executive not to take
things out of sequence. So, if the sequence is correctly observed,
some subordinate legislation that is still inchoate will be in
place. Everything will be in order, including previous enactments—those
inchoate ones—and then the Bill passes into law, at which
stage it is all correct. That is the way that it should be done
and the way that we anticipate it will be done. If it is not done
that way, it is not our fault.
Charlie Elphicke: I completely
agree, and it seems to me that the amendment will bring the provision
into conformity with the existing law. More to the point, I note
from various precedents of the joint Houses that it is a matter
of whether you, as Lord Chairman, are satisfied that, with this
particular provision, the Bill, as reported by the Joint Committee,
would not alter the law and would be satisfactory. Arguably, it
seems to be a question of judgment for you as Lord Chairman, rather
than for the Committee as a whole.
Chairman: All I can say
is that I am satisfied, and I recommend it to the Committee.
Clause 22 ordered to stand part of the Bill.
Clauses 23 to 28 ordered to stand part of the
Bill.
Chairman: There is a long
tranche after this where no issues have been raised and no amendments
proposed, and perhaps I can take them, and ask you to vote on
them, in fairly substantial segments. If we can take Part 4, clauses
29 to 45, which deal with registration and names of charities,
together with Part 5, clauses 46 to 60, which deal with information
powers. There seems to be no issue about the provenance of any
of those provisions, and I can recommend them to you as being
straightforward. Does any member wish to raise anything about
any of those clauses?
Clauses 29 to 60 ordered to stand part of the
Bill.
Q15 Chairman: We
come to Part 6, which, if I can put it this way, is a change of
pace. It gets into the question of cy-près powers and the
supervision of charities. Clauses 61 to 75 deal with cy-près
and cy-près schemes—a subject formally dear to my
financial heart. Clauses 76 to 89 deal with the commission acting
to protect charities. Clauses 90 to 95 deal with the official
custodian. Clauses 96 to 116 deal with common investment, dormant
bank accounts and additional powers. There is a very minor amendment
proposed for clause 105 in consequence of the amendment made to
clause 4. Do you have anything to add to that, Dr Caldwell?
Helen Caldwell:
I think the amendment to clause 105 is actually in connection
with the Mission and Pastoral Measure 2011.
Chairman: I am sorry.
You are quite right. It is what I might call a tidying amendment.
It simply amends "Pastoral Measure 1983" to "Mission
and Pastoral Measure 2011". I should have picked that up.
Does any member wish to ask any questions or make any comments
about the content of clauses 61 to 116?
Clauses 61 to 104 ordered to stand part of the
Bill.
Clause 105
Amendment C1 agreed to
Clause 105, as amended, ordered to stand part
of the Bill.
Clauses 106 to 116 ordered to stand part of the
Bill.
Chairman: There is another
run of clauses, in several parts. I will take the next two Parts,
Parts 7 and 8. Part 7 is clauses 117 to 129, dealing with charity
land. Part 8 deals with charity accounts, reports and returns,
and encompasses clauses 130 to 176. That covers annual reports,
financial thresholds and all the administrative matters relating
to land and reports. Does any member have anything to say?
Q16 Baroness Mallalieu:
My concern, with which Dr Caldwell may be able to help,
is about clause 149, subsections (7) and (8), and clause 151(4),
which are likely to be amended by the Health and Social Care Bill.
The infuriating thing about getting consolidation of a major piece
of law is to pick up the latest Bill and find that it is already
out of date. It looks here as if there is at least some foreseeable
timetable to the amendment being made. I know that the Health
and Social Care Bill has had hiccups and so on, and will no doubt
have more.
Let us face it, the Charities Bill is not urgent,
in terms of consolidation, because the law is there and is operating.
I wonder whether there is some way of delaying the final stages
of the Charities Bill, so that we can incorporate any changes
that come to be made as the other Bill passes through the House.
I am sure this is a matter that concerns you with every Bill.
However, here, because it is such an immense consolidation, it
would be a great pity if we put out a Bill which immediately,
as soon as it is published, is going to be not complete.
Helen Caldwell:
Having spoken to the person involved in the drafting of the health
legislation, my understanding is that the best solution is for
these provisions to be amended under powers conferred by that
Bill, when it comes into force. This Bill, once it is enacted,
will come into force in three months. I do not know what the implementation
plans would be for health service reforms.
Q17 Baroness Mallalieu:
The problem is that someone picking up this Bill might be
quite unaware of what has gone on subsequently elsewhere. It is
not only lawyers but laymen who are concerned with charities.
Instead of being able to look in one place, it is infuriating
to find you have not got the full picture.
Helen Caldwell:
I sympathise with that, but there are quite a few amendments in
front of you. There is not only the amendment on the Mission and
Pastoral Measure, of which we have to take account; there are
also some consequential amendments, because the Welsh have passed
a measure, and that has led us to make further changes. That is
one of the problems. The consolidation would probably need quite
a lot of further work—further amendments—if you held
it up, because unfortunately there is a lot of legislation going
on, and there are always some interactions. I would hope and one
would expect that this provision would be amended—it would
not just be left wrong. I am afraid that I cannot add to that.
Baroness Mallalieu: Thank
you.
Mr Dorrell: I am
very sympathetic to what the Baroness has said, but, on the other
hand, until Governments resist the temptation to change the law
with every passing Session of Parliament, I suspect that we are
never going to find a Session where that issue will not arise.
Lord Razzall: Quite.
Jesse Norman: If I might
add to that, I absolutely agree with my right hon. Friend. If
I may say so, the addiction to legislation is absolutely to be
deplored. The complexity that results from that must create nightmares
for the draftsman or draftswoman. It is certainly, in its extremity,
contrary to the rule of law that you cannot even find out what
the law is or that even a consolidation Bill of this quality does
not permit a full consolidation of the law. Is there some way
to put on record areas where it is already recognised that the
consolidation Bill may be somewhat superseded or incomplete?
Chairman: As I said earlier,
the proceedings of this Committee are published. They are transcribed
and published, so that they are in the public domain and part
of the parliamentary papers.
Jesse Norman: Except one
could not really imagine a lawyer necessarily going back to this
sitting. If there were some recognition that it might be incomplete
in some way, they would want to see it on the face of the Bill.
Chairman: It would be
a wonderful world if every Bill could be so self-contained, but
with the activity of Parliament—if I can put it that way—that
does not seem to be possible. As far as this Committee is concerned,
the position is that we have to take the law as it is. We cannot
really incorporate law that may be brought in, even if we have
a good idea that it will be. All we can do is slightly deplore
it ourselves.
Clauses 117 to 176 ordered to stand part of the
Bill.
Chairman: Part 9, which
starts with clause 177, deals with charity trustees, trustees
and auditors, and it is a self-contained portion. Nothing has
been raised about it, but does any member wish to say anything
about this segment?
Clauses 177 to 192 ordered to stand part of the
Bill.
Chairman: Part 10 deals
with charitable companies. Again, it is a self-contained and fairly
short segment. Does any member have any question or comment?
Clauses 193 to 203 ordered to stand part of the
Bill.
Chairman: Part 11 deals
with charitable incorporated organisations or CIOs. It goes from
clause 204 to clause 250. Does any member have anything they would
like to say on this group of clauses?
Clauses 204 to 250 ordered to stand part of the
Bill.
Chairman: Part 12 deals
with the incorporation of trustees and Part 13 with unincorporated
charities, and we will take them together. That covers clauses
251 to 286. Does any member wish to raise anything about those
clauses?
Clauses 251 to 286 ordered to stand part of the
Bill.
Chairman: Part 14 deals
with special trusts, Part 15 with local charities and Part 16
with mergers, on which, again, no issues have been raised. They
incorporate clauses 287 to 314. Does any member have any issue
with those?
Clauses 287 to 314 ordered to stand part of the
Bill.
Chairman: Part 17 deals
with the tribunal and covers clauses 315 to 331—Chapter
1, "General", Chapter 2, "Appeals and applications
to the Tribunal", and Chapter 3, "References to Tribunal".
Does any member have any matter they would like to raise on the
tribunal?
Clauses 315 to 331 ordered to stand part of the
Bill.
Chairman: Part 18 deals
with miscellaneous and supplementary provisions covering various
items. I will not attempt to characterise them—they speak
for themselves. Does any member have anything to raise about those
clauses?
Clauses 332 to 357 ordered to stand part of the
Bill.
Chairman: Clause 358 gives
the short title.
Clause 358 ordered to stand part of the Bill.
Chairman: If I may, I
will pass to the schedules. Schedule 1 deals with the Charity
Commission and Schedule 2 with the official custodian. I do not
think any issue has been raised on those provisions. Does any
member have anything they wish say?
Schedules 1 and 2 agreed to.
Q18 Chairman: Schedule
3 has the first of what I might call "housekeeping"
amendments, which arise from the main sets of subordinate legislation:
the draft Charities Act 2006 (Principal Regulators of Exempt Charities)
Regulations 2011 and the draft Charities Act 2006 (Changes in
Exempt Charities) Order 2011. They were laid before both Houses
on 12 May, and they are to come into effect, if I remember correctly,
immediately before the Bill comes into effect. Is that correct,
Dr Caldwell?
Helen Caldwell:
The SIs are expected to come into force on 1 August. The Bill
has a commencement period of three months, which is normal for
a consolidation.
Q19 Chairman:
On 1 August—I read the wrong note. You are correct. Would
you like to speak to the amendments to Schedule 3?
Helen Caldwell:
Certainly. The first amendment to schedule
3 adds new categories of exempt charity to the list of exempt
charities in that schedule. It simply reflects the effect of changes
being made by the exempt charities order, which is due to be considered
fairly soon. I understand that it is due to be debated in early
July.
Chairman: Does any member wish to ask a question
about the amendments or about Schedule 3 as a whole?
Schedule 3
Amendments 1 to 3 agreed to.
Schedule 3, as amended, agreed to.
Chairman: Schedules 4, 5 and 6 deal respectively
with enlargement of areas of local charities, the court's jurisdiction
over certain charities governed by or under statute, and appeals
and applications to tribunal. Schedule 6 is long and detailed.
No amendments have been proposed to any of those schedules, so
if I may, I will take them together. Does any member have a question
to raise about anything in those Schedules?
Schedules 4 to 6 agreed to.
Q20 Chairman:
Schedule 7 contains consequential amendments. As a consequence
of the subordinate legislation, to which I have referred, quite
a few amendments have been proposed. Dr Caldwell, is there
anything that you wish to say about them?
Helen Caldwell: We can
group the amendments. I am afraid the first, which is amendment
4 on the list that was circulated to you, corrects a typographical
error of mine. The other amendments take account of changes in
the law that are in the process of being made. They are partly
to do with the Mission and Pastoral Measure, partly to do with
the exempt charities SIs that are due to be made, and partly to
do with a Measure made by the Welsh Assembly.
Chairman: If it is of assistance to the Committee,
I have been through each of the amendments and I am satisfied
that they are all in order and that we should accept them. However,
if any member has a question about any of them, please say so.
Schedule 7
Amendments 4 to 10 agreed to.
Chairman: Apart from the
amendments, has any member any question to raise on schedule 7?
Schedule 7, as amended, agreed to.
Chairman: Schedule 8 deals
with transitionals and savings. No amendments are proposed. Does
any member wish to speak to anything in that schedule?
Schedule 8 agreed to.
Q21 Chairman: Schedule
9 is real draftsman's law: transitory modifications, to take account
of possible things that might not have happened. There are amendments
because certain things have happened and, therefore, these ghostly
possibilities no longer exist. Dr Caldwell, would you like
to speak to them?
Helen Caldwell:
I think you have explained that well in relation to one of the
amendments to the transitory provisions schedule. The one that
you may find relatively straightforward concerns clause 105. As
you are aware, we have amended clause 105 to change a reference
from the Pastoral Measure 1983 to the Mission and Pastoral Measure
2011. The Mission and Pastoral Measure 2011 is a consolidating
measure. In nature it is rather like this Bill; it reproduces
existing law. That Measure has already been made but it is not
expected to come into force before the consolidation. It is expected
to have a delayed commencement because the Church needs to make
some code or guidance, I believe. I hope I have got that right.
That means that the 2011 Measure is not expected to come into
force until early next year, I believe. We are hoping that this
Bill will come into force before then. If there is an interval,
amendment 11A can tell the reader not to worry about what looks
like a reference to a Measure not yet in force, because it says
in effect, "We know that is not yet in force," and it
can be read as a reference to the old Measure, until it comes
into force. That is the sort of thing that this rather technical
and nasty schedule does.
Chairman: Does any member
wish to risk conclusions on that?
Mr Dorrell: I am
relieved, Lord Chairman, that Dr Caldwell told us that we
do not have to worry.
Chairman: Again, if it
assists the Committee, I have been through each of these, and
I am in respectful agreement with the drafter that everything
is in order, so I can recommend it to the Committee.
May we get the numbers of the amendments? Amendment
11 is to paragraph 4. The amendment to paragraph 19 is 11A in
the second list. Amendment 12 is to paragraph 29(3); amendment
13 is to paragraph 29s(4).
Schedule 9
Amendments 11 to 13 agreed to.
Schedule 9, as amended, agreed to.
Q22 Chairman: Schedule
10—"Repeals and revocations"—has one amendment,
which is referred to in the explanatory notes to the amendments.
Dr Caldwell, do you have anything to say?
Helen Caldwell:
It is really just a consequential revocation.
Chairman: Does any member
wish to comment or have anything they wish to ask?
Schedule 10
Amendment 14 agreed to.
Schedule 10, as amended, agreed to.
Chairman: The final schedule
is schedule 11. There is an amendment to it to take into account
the changes to the subsections in clause 4. It is the fifth amendment
on the second sheet—amendment 15. Does any member wish to
raise any questions?
Schedule 11
Amendment 15 agreed to.
Schedule 11, as amended, agreed to.
Title agreed to.
Chairman: We now come
to the question of reporting to Parliament. We have prepared a
draft report:
"The Committee has considered the Charities
Bill, which was referred to it. The Committee has heard evidence
on the Bill and has made amendments to it, set out in the annexe
to this report, to improve its form. The Committee is of the opinion
that the Bill is pure consolidation and represents the existing
law as it will be once the Charities (Pre-consolidation Amendments)
Order 2011, the Charities Act 2006 (Principal Regulators of Exempt
Charities) Regulations 2011 and the Charities Act 2006 (Changes
in Exempt Charities) Order 2011 are in force. There is no point
to which the special attention of Parliament should be drawn."
That will be the first report of the Joint Committee
for this session of 2010-12. Are members content with the terms?
Jesse Norman: May I ask
whether the Committee should add, "in so far as it can determine"
to reflect the fact that we are not absolutely certain that it
does represent the full totality of the law, given Dr Caldwell's
comments?
Chairman: I suggest that
that will only cause doubts where I think the Committee does not
feel that doubt seriously exists, Mr Norman. I am sorry to
be a bit positive about that, but the Committee has pretty well
agreed on the subject and I would certainly not recommend that
it should depart from the standard wording, which this represents.
Jesse Norman: I am, of
course, content to take the Committee's judgment on that. I merely
draw attention again to the fact that Dr Caldwell clearly
said to us that she is not persuaded that every aspect of everything
has been included, and we cannot pretend that it has. Dr Caldwell
made it perfectly clear that there might well be developments
in the law of which she was unaware.
Chairman: Anything can
happen to any of us or any legislation at any time. We simply
are reporting that, on the material that we have, this is pure
consolidation and that there is no point to which Parliament's
attention should be drawn. We would be ill advised to attempt
to go beyond that. It is exactly what we are asked to do, and
we do it. Are members content with that? Does anyone wish to add
anything?
Mr Buckland: I recognise
my hon. Friend's—I will not say "sentiments",
because they are more than that—strongly held views based
on evidence about which we all know on legislative, if I dare
use the word, incontinence. While he makes them properly, we do
have to remind ourselves of the particular remit of this Committee
and the fact that we are operating on information known at the
time. I do not think that we should therefore worry about whether
this Committee can ever reach perfection, but we have a substantial
body of information on which we, ably assisted by Dr Caldwell,
can reach a firm conclusion. That should be the way that we report
to Parliament.
Chairman: Thank you, Mr Buckland.
I put the Question that the report, as drafted by the Secretariat
and read out by me a few minutes ago, be the terms in which the
Committee should report.
Question put and agreed to.
Bill to be reported, with amendments.
In conclusion, may I invite Mr Dorrell, as the
senior Commons Member present, to present the report to the House
of Commons and to report the minutes of proceedings?
Mr Dorrell: I will
do that.
Chairman: May I have the
leave of the Lords Members to make the report to the House of
Lords?
Question put and agreed to.
I thank you for your attendance and the helpful submissions
and discussions that have taken place. In particular, I thank
the officials and the drafter in charge of the Bill, Dr Caldwell,
for the assistance that they have given.
Mr Dorrell: As I
proposed your election, Lord Carswell, I thank you, on behalf
of the Committee, for the knowledgeable and skilful way in which
you have guided our counsels.
Chairman: That concludes
the business of the Committee. As far as we can see now, it will
not be necessary to meet again, so I propose that we adjourn.
Committee adjourned sine die.
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