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Lord Phillips of Sudbury: I am extremely grateful to all Members of the Committee who have contributed so effectively to the debate. As the noble Earl, Lord Caithness, has said, it is a mark of the importance of this amendment and those grouped with it that there has been no contrary voice, but rather strong support from all speakers. I am grateful for that.
I do not think the Minister will be surprised to hear that I found his response not just unacceptable but wholly unacceptable. To say that the Charity Commission has seven principles of operation, what jolly good principles they are, and that that is enough, really is not enough for us. If you want the seven principles written on the face of the Bill, they may be enough for us. However, they are self-imposed principles, they are changeable and they do not have the profile and the authority of being principles included in the Bill itself. I hazard a guess that 95 per cent to 99 per cent of all charities have no idea of these seven principles. I believe that they are less than prominent.
For all the reasons that have been mentioned, we must return to this amendment at the next stage of the Bill and probably vote on it. It will be important to know exactly what shape the concession that has been made to the noble Lord, Lord Hodgson, will take. Obviously, he, I and others will put our heads together on that, but I fear that this issue will have to be taken further. However, at this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hodgson of Astley Abbotts had given notice of his intention to move Amendment No. 69:
"To have regard to the principle that a burden of restriction which is imposed on a person, or on the carrying on of an activity, should be proportionate to the benefits, considered in general terms, which are expected to result from the imposition of that burden or restriction."
The noble Lord said: I thank the Minister for his very positive response. We look forward to hearing what he has to say. It was never my belief that the wording would have stood the test of the parliamentary draftsmen. I shall not move the amendment.
Lord Hodgson of Astley Abbotts moved Amendment No. 70:
"To publicise the outcome, both in cases where the Commission has made a decision and where it has failed to make a determination."
The noble Lord said: Amendment No. 70 is also concerned with the commission's general duties. Members of the Committee will note that this
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amendment seeks to insert as one of the commission's general duties the requirement that it should publish not only the outcome of all its decisions, but also where it has decided not to make a decision.
This amendment goes hand in hand with our other amendments that we have been discussing this afternoon and, indeed, at the previous sitting of the Committee, concerning the interaction of the commission with the charitable sector. They are all intended to increase the openness and transparency of the relationship between the two.
It is a commonplace that this Bill gives the Charity Commission very wide-ranging powers. With that increase in power it is only just that there should also be an increase in accountability and transparency. While the commission is a regulatory body it differs from many other types of regulatory body because, as we have already heard this afternoon, there is a culture of dialogue between the Charity Commission and the charitable sector—something that I think all Members of the Committee very much welcome. That should be continued. Setting in statute the requirement that the Charity Commission publicises all its decisions would help that process, as it would ensure that charities are kept informed of developments in the sector.
Part of the memorandum evidence provided by the Charity Commission to the Joint Committee explained that it provided information and advice and a footnote (Joint Committee on the draft Bill: Evidence Volume II-Ev 199) reads as follows:
"We publish information about: our decisions on questions of charitable status, our statutory and regulatory requirements, and related advice about best practice, the results of research into governance and finance issues, and the outcome of our investigations".
The commission has confirmed that it publishes information about these vital considerations but we wish to ask the Minister, will the commission be required to publish or publicise information concerning the above issues in all cases, whether a determination has been made or not? It is surely just as important for the sector to know when the commission has decided not to rule as to know when it has.
As has been previously discussed, charity law continues to evolve to reflect changing social attitudes. It is therefore necessary for it to be one of the commission's general duties to keep the sector abreast of any changes. Ensuring the commission publicises such developments would be a significant step towards achieving that. I beg to move.
Lord Bassam of Brighton: If the Government were to accept this amendment, the commission would be under a duty to publicise the outcome of all its decisions and of cases where it declined to make a decision. The commission makes thousands of decisions every year, the vast majority of them entirely non-controversial. For example, the commission, on the application of the trustees of a medium-sized service-providing charity, may make a decision to make an order allowing the trustees to purchase trustee indemnity insurance. This would be of little or
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no public interest and is an example of the kind of decision that the commission makes hundreds of times a year.
Presumably the noble Lord is interested in seeing the outcome of controversial or high profile cases or those that are likely to set a precedent. I expect that he is also motivated by a wish for the commission to be more transparent—which I am sure is widely shared. In fact, the commission already publishes the outcome of decisions of the commissioners that are novel, significant or otherwise of wider interest. That includes cases in which the commission decided to, or decided not to, register an organisation as a charity, such as the Church of Scientology case, which it did not register, and The Charity Bank Limited case, which it did. The commission also has a policy to report the outcome of every formal inquiry by publishing a statement of the results on its website. Occasionally, it may not be possible to publish a statement, for example, because there are ongoing criminal investigations or prosecutions pending. The commission does not routinely announce the opening of formal inquiries. However, in any case in which there is a particularly high level of public interest, or if the commission wishes to appeal to the general public for information, a press release will be issued.
The commission also publishes a great deal of its internal guidance to caseworkers in addition to its free publications aimed at trustees. The internal guidance allows trustees to see which factors will be taken into account when they approach the commission with a request for a decision. So if the trustees of two small almshouse charities wished to merge the two charities, they could see under the commission's internal guidance various issues that may be taken into consideration by the caseworker dealing with the case. That would allow the trustees, even before they contact the commission, to consider how the commission will view their application. That will inform their decision whether to proceed.
As the commission already as a matter of policy publicises the outcome of cases of interest, I think that the effect of the amendment would in any event be negligible. I am not sure, because of the straitjacket it might provide, that it would necessarily be terribly helpful.
I therefore hope that the noble Lord, having heard what I have said about current practice, will feel able to withdraw the amendment.
Lord Hodgson of Astley Abbotts: I am very grateful to the Minister for that forthright reply. He is right that we were not trying to get at the thousands of decisions but at what he described as the "high profile, precedent setting and novel decisions". He said at one point that the Charity Commission has a formal duty to publicise these matters and to do so on the website. Later, he said that it was a matter of policy to publicise. There is a slight difference in the wording there and I am not quite sure what the formal duty is.
This issue was raised with us by the Charity Law Association, which was concerned that there was not the degree of publicity of cases which it felt was
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appropriate. It is not for me to say whether that is right or wrong because I am not a charity lawyer, as I made clear. However, I wonder whether there is not a lacuna here. If the Charity Law Association feels that there is a problem, it does not seem to be answered as easily as the Minister has suggested. Does he have any further comment on the formal duty in the matter of policy?
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