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Lord Bassam of Brighton: I am rather in the camp of the noble Lord, Lord Borrie, in this argument but I must say that I tend also towards the point of view of the noble Lord, Lord Swinfen. Notwithstanding both those observations, I must resist the amendment. With the new framework we want to see from the Charity Commission a more open and innovative approach. Nothing in the Bill will preclude that.
We should not have this provision in the Bill. The debate, and certainly the remarks of the noble Lord, Lord Hodgson of Astley Abbotts, has been useful. We want to see the facilitation and development of the charitable sector—certainly the Government want that. However, it is not right to describe it as a function of the Charity Commission, which is at its core a regulatory body. The quality of how it addresses regulation is very important. No doubt the commission will want to facilitate the innovator in coming forward with new charitable concepts, ideas and thinking. The noble Lord, Lord Swinfen, rightly referred to the need to reflect on technological change.
But at heart the commission is there to ensure that the charitable sector is well run, well administered and conforms with the legislative framework, as well as to prevent mismanagement and provide a sensible way for charities to work. For those reasons, therefore, I have to resist the amendment. Perhaps we should remind ourselves that the commission can operate properly only within the confines of the law and that its task is to apply the existing law to new situations and perceptions. In doing so, I am sure that it will want to take account of new developments and new charitable interests and purposes.
It would not be appropriate for the commission to have as one of its functions an ability to extend the law in the way suggested in the amendment. It should develop the law only by analogy and where it considers it necessary, right and proper to do so. While I understand the spirit in which the amendment has been moved and the thinking behind it, it would be wrong to establish a new practice by providing this as a function for the commission. However, no doubt the commission will want to reflect on the need to encourage and facilitate as part of its advisory role, which we discussed during an earlier Committee sitting.
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While I am grateful to the noble Lord for providing us with an opportunity to discuss this issue, ultimately I have to invite him to withdraw the amendment.
Lord Hodgson of Astley Abbotts: I thank the Minister for his response, but I have to say that I am disappointed that he could not see what I was driving at. In fact, he started by saying he did, but then he swerved off that road. I am also grateful to all noble Lords who have taken part in our brief debate.
While I accept what the noble Lord, Lord Borrie, said—the Charity Commission should, of course, not "push"—the amendment, as my noble friend Lord Swinfen pointed out, refers to "facilitating". Indeed, the noble Lord, Lord Borrie, said that the commission should be helpful. To my mind, the word "helpful" is equal to that of "facilitate"; while they are not exactly the same, they are very close. Thus the reality of what I am driving at is much closer to the views expressed by the noble Lord, Lord Borrie, than he reflected in his remarks.
I thank my noble friend Lord Swinfen for his comments. I think that the balance is wrong here. We are trying to put in place a framework to enable the charitable sector to go forward while under Clause 7 the general duties, functions and objectives of its central authority are all cast in a negative sense. No proactive role is set out for the Charity Commission, and I think that there should be such a role. Given the very much greater powers now being vested in the Charity Commission, the charity sector runs the risk of being inhibited unless it is recognised that there is a need for a proactive, facilitatory and helpful—not pushy—role, so enabling new ways of tackling the eternal problems faced by the sector.
Obviously I have to withdraw the amendment today, but I shall read carefully what the Minister has said and I may well want to return to the point at a later stage.
Amendment, by leave, withdrawn.
Lord Shutt of Greetland moved Amendment No. 66:
"That the Commission takes due care and attention to communications to and from charities and others."
The noble Lord said: We are still considering the commission's general functions under Clause 7. My amendment would add a new subsection to provide that,
Noble Lords may recall that at Second Reading I said that,
I also quoted a standard paragraph used by the commission in its letters, which states:
"Please note: If we do not hear from you within three months of the date of this letter, we will assume that you do not wish to take the matter further and all correspondence held regarding this particular matter will be destroyed in accordance with Charity Commission policy". —[Official Report, 20/1/05; col. 895.]
Later in the debate, the Minister responded. He indicated that I would be receiving a response from the Charity Commission and he hoped that I would find that helpful. He said that I had made a good point about the clause. That is always good to hear. He said:
"Like any responsible body, the Charity Commission has to clarify its position with regard to correspondence. I am sure it will have heard his ardent plea today and I hope it will take note. I am sure it will. Perhaps I can use my position at the Dispatch Box to encourage it to write to the noble Lord, perhaps without the three-month caveat on the bottom of the letter".—[Official Report, 20/1/05; col. 960.]
Well, I received a response, as did all your Lordships who were present on that occasion. It is headed:
"The Charity Commission manages its records according to our business needs and, as a Government Department, in accordance with the Public Records Act, the three month limit applies only to the type of routine correspondence that we know from experience is unlikely to require further action".
It may be routine to the Charity Commission, but it is often not routine to the charities with which they are dealing. The example that I spotted in the letter was a complex one about the sale of property. It was not in any way routine. For people who have busy lives and are giving their time and services to charities, it is important that they can do this in a proper way and not be, as it were, hounded by being told, "You've got to do this within three months or else".
So this is the anti-destruction amendment. I received a response and I do not think much of it. But there is a fundamental principle here. I heard the Minister say a moment ago that, at its heart, the Charity Commission is a regulatory body. I understand and accept that. But there are three modes that the Charity Commission should operate in. The first and most important is to give comfort to the charitable sector; in effect, to be like a teddy bear to a small child—to give comfort. Secondly, it is to be a watchdog. Thirdly, it may occasionally have to be a bloodhound. However, it must know which mode it is in at a particular time. The percentages of time spent in each role may be 90 per cent, 9.9 percent and 0.1 percent. It is important that the Charity Commission is not seen as being on the backs of charities, but is helpful.
It is therefore important—and it may be even more important depending on other discussions we may have regarding where the Charity Commission stands on whether it is to be arm's length from government—that a principle is established to the effect that the Charity Commission should take due care and attention of correspondence and deals with it in a way that is appropriate for the charity sector, not in the hounding way that is currently proposed. I beg to move.
Lord Hodgson of Astley Abbotts: I am not sure that I will follow the noble Lord with his teddy bear analogy, but I have much sympathy with the amendment. In support of the points that he has made,
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I shall quote from a letter that I received from a firm of solicitors who have been much involved with the charitable sector. It states:
"I think it needs to be recognised that even when trustees do write to the Commission that the Commission has signed up to some sort of quality control marque which enables them to spend 20 days replying to a letter, even if after 20 days all that they write is that the person dealing with the matter has had to refer to somebody more senior since they were unable to answer the question. After another 20 days, the reply is received and it is then indicated that if there is no response within three months the correspondence will be destroyed!
"One of the Commission's problems is that it has failed to keep much of its essential paperwork in order to deal effectively with charities. Some years ago I was told that a member of their staff embarked on the policy of weeding out their files, as a result of which, much of the documentation upon which they ought to be relying to deal with charity enquiries, has actually been destroyed".
The letter is from a firm working that is at the sharp end of charitable policy and deals with the Charity Commission. Therefore, it strongly underlines what the noble Lord has said.
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