| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Lord Swinfen: I thank the Minister for his fairly lengthy and detailed reply. I am not sure, in my own mind, whether it would be appropriate for the tribunal to award compensation for maladministration. The Charity Commission should be held to account where there is maladministration. However, I would like to
23 Feb 2005 : Column GC318
read very carefully what the Minister has said before coming back to this matter on Report. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hodgson of Astley Abbotts moved Amendment No. 77:
The noble Lord said: In moving Amendment No. 77, I should also like to speak to Amendment No. 83. They are grouped with amendments in the name of the noble Lord, Lord Phillips, and my noble friend Lord Swinfen. We have moved a tad further down page 7 of the Bill to the practice and procedure section under Clause 8.
This section establishes that the Charity Commission is to be the respondent on appeal at the tribunal. Subsections (2) and (4) detail the matters to be covered in the Lord Chancellor's rules which would regulate the exercise of the rights of appeal to the tribunal as well as its practice and procedure.
Our two amendments would change the drafting of the Bill in a way that I suspect the Minister will argue is unnecessary. They would provide that the Lord Chancellor "shall" rather than "may" make rules and provisions regulating the rights to appeal under subsections (2) and (4). Such regulations are listed under subsection (4) and include provisions inter alia about the representation of parties to proceedings, disclosure of documents and the withdrawal of appeals and applications. Such provisions are significant considerations that I believe must be covered under regulatory rules by the Lord Chancellor and not left to choice. They are seen to be significant enough to list in the Bill and should be given a guaranteed place in regulation. Binding the Lord Chancellor to make rules regulating the rights to appeal brings more clarity to the procedures of the tribunal.
As the Minister has said, we have yet to see the guidelines on the tribunal so we are, so to speak, arguing in the dark. But ensuring that the Lord Chancellor will definitely rather than maybe make rules regulating the rights to appeal will at least go some way to providing some initial clarity on a matter that remains rather hazy.
I think that the Minister will argue that in law "may" equals "shall", but as a non-lawyer, I always like clarity. It seems to me that "shall" is a great deal clearer than "may", whatever the Minister may say. I beg to move.
Lord Phillips of Sudbury: My Amendment No. 80 is the second in this group of four. Amendment No. 81 in the name of the noble Lord, Lord Swinfen, covers, in essence, the same ground as mine. Amendment No. 83, in the name of the noble Lord, Lord Hodgson of Astley Abbotts, is similar to his Amendment No. 77.
Amendment No. 80 deals with the duty or discretion of the Lord Chancellor to make rules,
That is very sensible. My amendment adds,
"and in so doing shall seek to make such rules as simple, non-adversarial and user-friendly as shall be practicable".
I hope that this will appeal to the noble Lord, Lord Bassam. Not only is he not a lawyer, he is a healthy critic of the obfuscations of my profession. I am delighted, too, that the noble Lord, Lord Hodgson, is not a lawyer and can thus bring shafts of Anglo-Saxon sense to the interpretation of language.
If this tribunal goes anywhere near the way of, for example, the employment tribunals—which we should not forget started off with the intention of being the plain man's guide to self-representation—it will be an abject failure. The employment tribunals are now lawyer infested. There are tomes and tomes of decisions and law books and textbooks and courses and consultants. It is a nightmare. It is a great growth area for lawyers. I am not sure that we did as well as we might have done with those tribunals. As far as we can, we must avoid allowing these tribunals to go that way.
Before the good noble Lord, Lord Borrie, accuses me of naivety, I shall say at once that there is a strict limit on how far you can keep complex law out of these tribunals, because they are essentially dealing with decisions that will be based on law. Charity law, as we all know, is at least as complicated as any other branch of law. But at least we can say, and put it clearly at the heart of these measures on the tribunal, that when it comes to practice and procedure, the rules shall allow the tribunal to be as simple, non-adversarial and user-friendly as practicable. I hope very much that that will appeal to the Minister and even to the Government. I beg to move.
Lord Swinfen: Before speaking to my own amendment, I should like to support the amendment of my noble friend Lord Hodgson of Astley Abbotts, in that we should leave out "may" and insert "shall".
Let me take the Minister back a small number of years to when he was a small boy and was given permission by his mother to go down to the corner shop and buy himself some sweets. That was permissive. But on another day, his mother said to him, "You shall go down to the shop and buy me some baked beans before you go out to play." That is not permissive; that is instructive. You have got to do it whether you like it or not. So there is a considerable difference between "may" and "shall". There is no way that the Minister can come back to me and tell me that the two words mean the same. They do not. I strongly support my noble friend in his amendment.
My Amendment No. 81 is an attempt to make certain that the rules made by the Lord Chancellor for the tribunal are effective. The tribunal must have power to access all charity, all commission and all receiver's and managers' records and require the attendance of any individual person. It is much quicker than the courts. It will take weeks rather than months, certainly, and possibly years. It will be much
23 Feb 2005 : Column GC320
cheaper than the courts. And much to the chagrin of the noble Lord, Lord Phillips, I am sure, lawyers are not essential—although I am sure that he is overworked in any case.
Under the rules as I suggest them, the tribunal must publish all cases without the anonymising favoured by the Independent Complaints Reviewer. The tribunal must include expert charity lawyers as well as trustees experienced in small as well as big charities. It must be charged with seeking,
"fairness, justice and equity for all stakeholders, whether or not they are party to the case, as well as technical compliance".
Lord Borrie: I would not dream of accusing the noble Lord, Lord Phillips, of naivety—certainly not on the matters about which he has just been talking. I share his view on employment tribunals, and other tribunals, which were often set up with the intention of taking matters out of the courts so that they could be dealt with cheaply, quickly and lawyer-free.
I think that I am right in saying that, when the various welfare state tribunals under the national insurance Acts were set up by the Attlee government in the late 1940s, the great cry of the Trades Union Congress was, "No more courts, no more lawyers, let's put all these matters into the hands of tribunals". The tribunals were to have a chairman—he might be a lawyer but there would not be lawyers on both sides arguing cases—two wingmen, who would be a trade union representative and a worker representative, and an employer representative. It was intended that the tribunals would come to fair, equitable and sensible decisions and would not be concerned with the technicalities of the law. We all know that it did not work out quite as happily as that. The tribunals got "infested"—to take the word used by the noble Lord, Lord Phillips—with lawyers.
I very much share the noble Lord's general theme on what is desirable. But a week or two ago, when we debated the very early clauses of the Bill during a previous Committee sitting, we discussed definitions. Members of the Committee who were present will remember how long it took us. Did we resolve the question of what is a charity that advances religion, or what is a charity to advance all the various other causes listed? The noble Lord, Lord Phillips, in particular referred to Tudor on Charities and other authoritative works showing how complex the law had become since the famous statute of 1601—there are 400 years of law.
I like the propositions that have been put forward by the noble Lords, Lord Hodgson and Lord Phillips. But on the amendments of the noble Lord, Lord Swinfen, who has tabled more than the noble Lord, Lord Phillips, the more detail there is, the more questionable some of the propositions are. On Amendment No. 80, tabled by the noble Lord, Lord Phillips, I would like to see non-adversarial rules as far as practicable. However, if you have non-adversarial procedures in relation to a complex scheme of charities you must have, for example, a lawyer acting for the tribunal who will ensure that everybody knows what the law is, who probes the definitions and all the rest. If you do not have lawyers on both sides, you must certainly have one doing that very effectively on behalf of the tribunal.
23 Feb 2005 : Column GC321
In response to the last of the propositions of the noble Lord, Lord Swinfen—tribunals shall seek fairness, justice, equity and so on—we all know that the law and justice are not necessarily the same things. The law strives for justice. The Bill contains definitions and law accumulated over the years; they are not being dismissed out of hand, as we are not starting absolutely from scratch. Although seeking fairness, justice and equity for all stakeholders is a very desirable objective, I very much doubt whether the Lord Chancellor could somehow set out the rules differently from how he would do without the inclusion of that phrase.
I shall not continue at length, because, as I am sure the noble Lord, Lord Swinfen, will agree, the more detailed an amendment is, the easier it is to criticise it. No doubt he would like simply to debate the matter and for the Minister to respond as constructively as possible to his points. I admit that I am being entirely negative, but, then, I am not the Minister.
| Next Section | Back to Table of Contents | Lords Hansard Home Page |